Seila Law LLC v. Consumer Financial Protection Bureau

(Slip Opinion) OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

SEILA LAW LLC v. CONSUMER FINANCIAL

PROTECTION BUREAU

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–7. Argued March 3, 2020—Decided June 29, 2020

In the wake of the 2008 financial crisis, Congress established the Con-

sumer Financial Protection Bureau (CFPB), an independent regula-

tory agency tasked with ensuring that consumer debt products are safe

and transparent. See Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank), 124 Stat. 1376. Congress transferred the

administration of 18 existing federal statutes to the CFPB, including

the Fair Credit Reporting Act, the Fair Debt Collection Practices Act,

and the Truth in Lending Act; and Congress enacted a new prohibition

on unfair and deceptive practices in the consumer-finance sector. 12

U. S. C. §5536(a)(1)(B). In doing so, Congress gave the CFPB extensive

rulemaking, enforcement, and adjudicatory powers, including the au-

thority to conduct investigations, issue subpoenas and civil investiga-

tive demands, initiate administrative adjudications, prosecute civil ac-

tions in federal court, and issue binding decisions in administrative

proceedings. The CFPB may seek restitution, disgorgement, injunc-

tive relief, and significant civil penalties for violations of the 19 federal

statutes under its purview. So far, the agency has obtained over $11

billion in relief for more than 25 million consumers.

Unlike traditional independent agencies headed by multimember

boards or commissions, the CFPB is led by a single Director,

§5491(b)(1), who is appointed by the President with the advice and

consent of the Senate, §5491(b)(2), for a five-year term, during which

the President may remove the Director only for “inefficiency, neglect

of duty, or malfeasance in office,” §§5491(c)(1), (3). The CFPB receives

its funding outside the annual appropriations process from the Federal

Reserve, which is itself funded outside the appropriations process

through bank assessments.

2 SEILA LAW LLC v. CONSUMER FINANCIAL

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In 2017, the CFPB issued a civil investigative demand to Seila Law

LLC, a California-based law firm that provides debt-related legal ser-

vices to clients. The civil investigative demand (essentially a sub-

poena) sought information and documents related to the firm’s busi-

ness practices. Seila Law asked the CFPB to set aside the demand on

the ground that the agency’s leadership by a single Director removable

only for cause violated the separation of powers. When the CFPB de-

clined, Seila Law refused to comply with the demand, and the CFPB

filed a petition to enforce the demand in District Court. Seila Law

renewed its claim that the CFPB’s structure violated the separation of

powers, but the District Court disagreed and ordered Seila Law to com-

ply with the demand. The Ninth Circuit affirmed, concluding that

Seila Law’s challenge was foreclosed by Humphrey’s Executor v. United

States, 295 U. S. 602, and Morrison v. Olson, 487 U. S. 654.

Held: The judgment is vacated and remanded.

923 F. 3d 680, vacated and remanded.

THE CHIEF JUSTICE delivered the opinion of the Court with respect

to Parts I, II, and III, concluding:

1. Appointed amicus raises three threshold arguments for why this

Court may not or should not reach the merits of petitioner’s constitu-

tional challenge, but they are unavailing. Pp. 8–11.

2. The CFPB’s leadership by a single individual removable only for

inefficiency, neglect, or malfeasance violates the separation of powers.

Pp. 11–30.

(a) Article II vests the entire “executive Power” in the President

alone, but the Constitution presumes that lesser executive officers will

assist the President in discharging his duties. The President’s execu-

tive power generally includes the power to supervise—and, if neces-

sary, remove—those who exercise the President’s authority on his be-

half. The President’s removal power has long been confirmed by

history and precedent. It was recognized by the First Congress in

1789, confirmed by this Court in Myers v. United States, 272 U. S. 52,

and reiterated in Free Enterprise Fund v. Public Company Accounting

Oversight Bd., 561 U. S. 477. In Free Enterprise Fund, the Court rec-

ognized that it had previously upheld certain congressional limits on

the President’s removal power. But the Court declined to extend those

limits to “a new situation not yet encountered by the Court.” 561 U. S.,

at 483. Free Enterprise Fund left in place only two exceptions to the

President’s unrestricted removal power. First, Humphrey’s Executor

permitted Congress to give for-cause removal protection to a multi-

member body of experts who were balanced along partisan lines, ap-

pointed to staggered terms, performed only “quasi-legislative” and

“quasi-judicial functions,” and were said not to exercise any executive

power. Second, Morrison approved for-cause removal protection for an

Cite as: 591 U. S. ____ (2020) 3

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inferior officer—the independent counsel—who had limited duties and

no policymaking or administrative authority. Pp. 11–16.

(b) Neither Humphrey’s Executor nor Morrison resolves whether

the CFPB Director’s insulation from removal is constitutional. The

New Deal-era FTC upheld in Humphrey’s Executor bears little resem-

blance to the CFPB. Unlike the multiple Commissioners of the FTC,

who were balanced along partisan lines and served staggered terms to

ensure the accumulation of institutional knowledge, the CFPB Direc-

tor serves a five-year term that guarantees abrupt shifts in leadership

and the loss of agency expertise. In addition, the Director cannot be

dismissed as a mere legislative or judicial aid. Rather, the Director

possesses significant administrative and enforcement authority, in-

cluding the power to seek daunting monetary penalties against private

parties in federal court—a quintessentially executive power not con-

sidered in Humphrey’s Executor.

The logic of Morrison also does not apply. The independent counsel

approved in Morrison was an inferior officer who lacked policymaking

or administrative authority and exercised narrow authority to initiate

criminal investigations and prosecutions of Governmental actors iden-

tified by others. By contrast, the CFPB Director is a principal officer

whose duties are far from limited. The Director promulgates binding

rules fleshing out 19 consumer-protection statutes that cover every-

thing from credit cards and car payments to mortgages and student

loans. And the Director brings the coercive power of the state to bear

on millions of private citizens and businesses, imposing potentially bil-

lion-dollar penalties through administrative adjudications and civil ac-

tions.

The question here is therefore whether to extend the Humphrey’s

Executor and Morrison exceptions to a “new situation.” Free Enterprise

Fund, 561 U. S., at 433. Pp. 16–18.

(c) The Court declines to extend these precedents to an independ-

ent agency led by a single Director and vested with significant execu-

tive power. Pp. 18–30.

(1) The CFPB’s structure has no foothold in history or tradition.

Congress has provided removal protection to principal officers who

alone wield power in only four isolated instances: the Comptroller of

the Currency (for a one-year period during the Civil War); the Office of

Special Counsel; the Administrator of the Social Security Administra-

tion; and the Director of the Federal Housing Finance Agency. Aside

from the one-year blip for the Comptroller of the Currency, these ex-

amples are modern and contested; and they do not involve regulatory

or enforcement authority comparable to that exercised by the CFPB.

Pp. 18–21.

4 SEILA LAW LLC v. CONSUMER FINANCIAL

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(2) The CFPB’s single-Director configuration is also incompati-

ble with the structure of the Constitution, which—with the sole excep-

tion of the Presidency—scrupulously avoids concentrating power in the

hands of any single individual. The Framers’ constitutional strategy

is straightforward: divide power everywhere except for the Presidency,

and render the President directly accountable to the people through

regular elections. In that scheme, individual executive officials may

wield significant authority, but that authority remains subject to the

ongoing supervision and control of the elected President. The CFPB’s

single-Director structure contravenes this carefully calibrated system

by vesting significant governmental power in the hands of a single in-

dividual who is neither elected by the people nor meaningfully con-

trolled (through the threat of removal) by someone who is. The Direc-

tor may unilaterally, without meaningful supervision, issue final

regulations, oversee adjudications, set enforcement priorities, initiate

prosecutions, and determine what penalties to impose on private par-

ties. And the Director may do so without even having to rely on Con-

gress for appropriations. While the CFPB’s independent, single-Direc-

tor structure is sufficient to render the agency unconstitutional, the

Director’s five-year term and receipt of funds outside the appropria-

tions process heighten the concern that the agency will “slip from the

Executive’s control, and thus from that of the people.” Free Enterprise

Fund, 561 U. S., at 499. Pp. 21–25.

(3) Amicus raises three principal arguments in the agency’s de-

fense. First, amicus challenges the textual basis for the President’s

removal power and highlights statements from individual Framers ex-

pressing divergent views on the subject. This Court’s precedents, how-

ever, make clear that the President’s removal power derives from the

“executive Power” vested exclusively in the President by Article II.

And this Court has already discounted the founding-era statements

cited by amicus in light of their context. Second, amicus claims that

Humphrey’s Executor and Morrison establish a general rule that Con-

gress may freely constrain the President’s removal power, with only

two limited exceptions not applicable here. But text, first principles,

the First Congress’s decision in 1789, Myers, and Free Enterprise Fund

all establish that the President’s removal power is the rule, not the

exception. Finally, amicus submits that this Court can cure any con-

stitutional defect in the CFPB’s structure by interpreting the language

“inefficiency, neglect of duty, or malfeasance in office,” 12 U. S. C.

§5491(c)(3), to reserve substantial discretion to the President. But

Humphrey’s Executor implicitly rejected this position, and the CFPB’s

defenders have not advanced any workable standard derived from the

statutory text. Nor have they explained how a lenient removal stand-

ard can be squared with the Dodd-Frank Act as a whole, which makes

Cite as: 591 U. S. ____ (2020) 5

Syllabus

plain that the CFPB is an “independent bureau.” §5491(a).

The dissent advances several additional arguments in the agency’s

defense, but they have already been expressly considered and rejected

by the Court in Free Enterprise Fund. Pp. 25–30.

THE CHIEF JUSTICE, joined by JUSTICE ALITO and JUSTICE KAV-

ANAUGH, concluded in Part IV that the Director’s removal protection is

severable from the other provisions of the Dodd-Frank Act that estab-

lish the CFPB and define its authority. Pp. 30–37.

ROBERTS, C. J., delivered the opinion of the Court with respect to Parts

I, II, and III, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ.,

joined, and an opinion with respect to Part IV, in which ALITO and KAV-

ANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in part and

dissenting in part, in which GORSUCH, J., joined. KAGAN, J., filed an opin-

ion concurring in the judgment with respect to severability and dissent-

ing in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

Cite as: 591 U. S. ____ (2020) 1

Opinion

Opinion of of the Court

ROBERTS , C. J.

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order that

corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–7

_________________

SEILA LAW LLC, PETITIONER v. CONSUMER

FINANCIAL PROTECTION BUREAU

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 29, 2020]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court with respect to Parts I, II, and III.

In the wake of the 2008 financial crisis, Congress estab-

lished the Consumer Financial Protection Bureau (CFPB),

an independent regulatory agency tasked with ensuring

that consumer debt products are safe and transparent. In

organizing the CFPB, Congress deviated from the structure

of nearly every other independent administrative agency in

our history. Instead of placing the agency under the lead-

ership of a board with multiple members, Congress pro-

vided that the CFPB would be led by a single Director, who

serves for a longer term than the President and cannot be

removed by the President except for inefficiency, neglect, or

malfeasance. The CFPB Director has no boss, peers, or vot-

ers to report to. Yet the Director wields vast rulemaking,

enforcement, and adjudicatory authority over a significant

portion of the U. S. economy. The question before us is

whether this arrangement violates the Constitution’s sepa-

ration of powers.

Under our Constitution, the “executive Power”—all of

it—is “vested in a President,” who must “take Care that the

2 SEILA LAW LLC v. CONSUMER FINANCIAL

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Opinion

Opinion of of the Court

ROBERTS , C. J.

Laws be faithfully executed.” Art. II, §1, cl. 1; id., §3. Be-

cause no single person could fulfill that responsibility alone,

the Framers expected that the President would rely on sub-

ordinate officers for assistance. Ten years ago, in Free En-

terprise Fund v. Public Company Accounting Oversight Bd.,

561 U. S. 477 (2010), we reiterated that, “as a general mat-

ter,” the Constitution gives the President “the authority to

remove those who assist him in carrying out his duties,” id.,

at 513–514. “Without such power, the President could not

be held fully accountable for discharging his own responsi-

bilities; the buck would stop somewhere else.” Id., at 514.

The President’s power to remove—and thus supervise—

those who wield executive power on his behalf follows from

the text of Article II, was settled by the First Congress, and

was confirmed in the landmark decision Myers v. United

States, 272 U. S. 52 (1926). Our precedents have recognized

only two exceptions to the President’s unrestricted removal

power. In Humphrey’s Executor v. United States, 295 U. S.

602 (1935), we held that Congress could create expert agen-

cies led by a group of principal officers removable by the

President only for good cause. And in United States v. Per-

kins, 116 U. S. 483 (1886), and Morrison v. Olson, 487 U. S.

654 (1988), we held that Congress could provide tenure pro-

tections to certain inferior officers with narrowly defined

duties.

We are now asked to extend these precedents to a new

configuration: an independent agency that wields signifi-

cant executive power and is run by a single individual who

cannot be removed by the President unless certain statu-

tory criteria are met. We decline to take that step. While

we need not and do not revisit our prior decisions allowing

certain limitations on the President’s removal power, there

are compelling reasons not to extend those precedents to

the novel context of an independent agency led by a single

Director. Such an agency lacks a foundation in historical

Cite as: 591 U. S. ____ (2020) 3

Opinion of the Court

practice and clashes with constitutional structure by con-

centrating power in a unilateral actor insulated from Pres-

idential control.

We therefore hold that the structure of the CFPB violates

the separation of powers. We go on to hold that the CFPB

Director’s removal protection is severable from the other

statutory provisions bearing on the CFPB’s authority. The

agency may therefore continue to operate, but its Director,

in light of our decision, must be removable by the President

at will.

I

A

In the summer of 2007, then-Professor Elizabeth Warren

called for the creation of a new, independent federal agency

focused on regulating consumer financial products. War-

ren, Unsafe at Any Rate, Democracy (Summer 2007). Pro-

fessor Warren believed the financial products marketed to

ordinary American households—credit cards, student

loans, mortgages, and the like—had grown increasingly un-

safe due to a “regulatory jumble” that paid too much atten-

tion to banks and too little to consumers. Ibid. To remedy

the lack of “coherent, consumer-oriented” financial regula-

tion, she proposed “concentrat[ing] the review of financial

products in a single location”—an independent agency mod-

eled after the multimember Consumer Product Safety Com-

mission. Ibid.

That proposal soon met its moment. Within months of

Professor Warren’s writing, the subprime mortgage market

collapsed, precipitating a financial crisis that wiped out

over $10 trillion in American household wealth and cost

millions of Americans their jobs, their retirements, and

their homes. In the aftermath, the Obama administration

embraced Professor Warren’s recommendation. Through

the Treasury Department, the administration encouraged

Congress to establish an agency with a mandate to ensure

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Opinion of the Court

that “consumer protection regulations” in the financial sec-

tor “are written fairly and enforced vigorously.” Dept. of

Treasury, Financial Regulatory Reform: A New Foundation

55 (2009). Like Professor Warren, the administration envi-

sioned a traditional independent agency, run by a multi-

member board with a “diverse set of viewpoints and experi-

ences.” Id., at 58.

In 2010, Congress acted on these proposals and created

the Consumer Financial Protection Bureau (CFPB) as an

independent financial regulator within the Federal Reserve

System. Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank), 124 Stat. 1376. Congress

tasked the CFPB with “implement[ing]” and “enforc[ing]” a

large body of financial consumer protection laws to “en-

sur[e] that all consumers have access to markets for con-

sumer financial products and services and that markets for

consumer financial products and services are fair, transpar-

ent, and competitive.” 12 U. S. C. §5511(a). Congress

transferred the administration of 18 existing federal stat-

utes to the CFPB, including the Fair Credit Reporting Act,

the Fair Debt Collection Practices Act, and the Truth in

Lending Act. See §§5512(a), 5481(12), (14). In addition,

Congress enacted a new prohibition on “any unfair, decep-

tive, or abusive act or practice” by certain participants in

the consumer-finance sector. §5536(a)(1)(B). Congress au-

thorized the CFPB to implement that broad standard (and

the 18 pre-existing statutes placed under the agency’s pur-

view) through binding regulations. §§5531(a)–(b),

5581(a)(1)(A), (b).

Congress also vested the CFPB with potent enforcement

powers. The agency has the authority to conduct investiga-

tions, issue subpoenas and civil investigative demands, in-

itiate administrative adjudications, and prosecute civil ac-

tions in federal court. §§5562, 5564(a), (f ). To remedy

violations of federal consumer financial law, the CFPB may

seek restitution, disgorgement, and injunctive relief, as

Cite as: 591 U. S. ____ (2020) 5

Opinion of the Court

well as civil penalties of up to $1,000,000 (inflation ad-

justed) for each day that a violation occurs. §§5565(a),

(c)(2); 12 CFR §1083.1(a), Table (2019). Since its inception,

the CFPB has obtained over $11 billion in relief for over 25

million consumers, including a $1 billion penalty against a

single bank in 2018. See CFPB, Financial Report of the

Consumer Financial Protection Bureau, Fiscal Year 2015,

p. 3; CFPB, Bureau of Consumer Financial Protection An-

nounces Settlement With Wells Fargo for Auto-Loan Ad-

ministration and Mortgage Practices (Apr. 20, 2018).

The CFPB’s rulemaking and enforcement powers are cou-

pled with extensive adjudicatory authority. The agency

may conduct administrative proceedings to “ensure or en-

force compliance with” the statutes and regulations it ad-

ministers. 12 U. S. C. §5563(a). When the CFPB acts as an

adjudicator, it has “jurisdiction to grant any appropriate le-

gal or equitable relief.” §5565(a)(1). The “hearing officer”

who presides over the proceedings may issue subpoenas, or-

der depositions, and resolve any motions filed by the par-

ties. 12 CFR §1081.104(b). At the close of the proceedings,

the hearing officer issues a “recommended decision,” and

the CFPB Director considers that recommendation and “is-

sue[s] a final decision and order.” §§1081.400(d),

1081.402(b); see also §1081.405.

Congress’s design for the CFPB differed from the pro-

posals of Professor Warren and the Obama administration

in one critical respect. Rather than create a traditional in-

dependent agency headed by a multimember board or com-

mission, Congress elected to place the CFPB under the

leadership of a single Director. 12 U. S. C. §5491(b)(1). The

CFPB Director is appointed by the President with the ad-

vice and consent of the Senate. §5491(b)(2). The Director

serves for a term of five years, during which the President

may remove the Director from office only for “inefficiency,

neglect of duty, or malfeasance in office.” §§5491(c)(1), (3).

Unlike most other agencies, the CFPB does not rely on

6 SEILA LAW LLC v. CONSUMER FINANCIAL

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Opinion of the Court

the annual appropriations process for funding. Instead, the

CFPB receives funding directly from the Federal Reserve,

which is itself funded outside the appropriations process

through bank assessments. Each year, the CFPB requests

an amount that the Director deems “reasonably necessary

to carry out” the agency’s duties, and the Federal Reserve

grants that request so long as it does not exceed 12% of the

total operating expenses of the Federal Reserve (inflation

adjusted). §§5497(a)(1), (2)(A)(iii), 2(B). In recent years,

the CFPB’s annual budget has exceeded half a billion dol-

lars. See CFPB, Fiscal Year 2019: Ann. Performance Plan

and Rep., p. 7.

B

Seila Law LLC is a California-based law firm that pro-

vides debt-related legal services to clients. In 2017, the

CFPB issued a civil investigative demand to Seila Law to

determine whether the firm had “engag[ed] in unlawful acts

or practices in the advertising, marketing, or sale of debt

relief services.” 2017 WL 6536586, *1 (CD Cal., Aug. 25,

2017). See also 12 U. S. C. §5562(c)(1) (authorizing the

agency to issue such demands to persons who “may have

any information[ ] relevant to a violation” of one of the laws

enforced by the CFPB). The demand (essentially a sub-

poena) directed Seila Law to produce information and doc-

uments related to its business practices.

Seila Law asked the CFPB to set aside the demand, ob-

jecting that the agency’s leadership by a single Director re-

movable only for cause violated the separation of powers.

The CFPB declined to address that claim and directed Seila

Law to comply with the demand.

When Seila Law refused, the CFPB filed a petition to en-

force the demand in the District Court. See §5562(e)(1) (cre-

ating cause of action for that purpose). In response, Seila

Law renewed its defense that the demand was invalid and

must be set aside because the CFPB’s structure violated the

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Opinion of the Court

Constitution. The District Court disagreed and ordered

Seila Law to comply with the demand (with one modifica-

tion not relevant here).

The Court of Appeals affirmed. 923 F. 3d 680 (CA9 2019).

The Court observed that the “arguments for and against”

the constitutionality of the CFPB’s structure had already

been “thoroughly canvassed” in majority, concurring, and

dissenting opinions by the en banc Court of Appeals for the

District of Columbia Circuit in PHH Corp. v. CFPB, 881

F. 3d 75 (2018), which had rejected a challenge similar to

the one presented here. 923 F. 3d, at 682. The Court saw

“no need to re-plow the same ground.” Ibid. Instead, it pro-

vided a brief explanation for why it agreed with the PHH

Court’s core holding. The Court took as its starting point

Humphrey’s Executor, which had approved for-cause re-

moval protection for the Commissioners of the Federal

Trade Commission (FTC). In applying that precedent, the

Court recognized that the CFPB wields “substantially more

executive power than the FTC did back in 1935” and that

the CFPB’s leadership by a single Director (as opposed to a

multimember commission) presented a “structural differ-

ence” that some jurists had found “dispositive.” 923 F. 3d,

at 683–684. But the Court felt bound to disregard those

differences in light of our decision in Morrison, which per-

mitted a single individual (an independent counsel) to exer-

cise a core executive power (prosecuting criminal offenses)

despite being insulated from removal except for cause. Be-

cause the Court found Humphrey’s Executor and Morrison

“controlling,” it affirmed the District Court’s order requir-

ing compliance with the demand. 923 F. 3d, at 684.

We granted certiorari to address the constitutionality of

the CFPB’s structure. 589 U. S. ___ (2019). We also re-

quested argument on an additional question: whether, if

the CFPB’s structure violates the separation of powers, the

CFPB Director’s removal protection can be severed from the

rest of the Dodd-Frank Act.

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Opinion of the Court

Because the Government agrees with petitioner on the

merits of the constitutional question, we appointed Paul

Clement to defend the judgment below as amicus curiae.

He has ably discharged his responsibilities.

II

We first consider three threshold arguments raised by

the appointed amicus for why we may not or should not

reach the merits. Each is unavailing.

First, amicus argues that the demand issued to petitioner

is not “traceable” to the alleged constitutional defect be-

cause two of the three Directors who have in turn played a

role in enforcing the demand were (or now consider them-

selves to be) removable by the President at will. Brief for

Court-Appointed Amicus Curiae 21–24. Amicus highlights

the Government’s argument below that the demand, origi-

nally issued by former Director Richard Cordray, had been

ratified by an acting CFPB Director who, according to the

Office of Legal Counsel (OLC), was removable by the Pres-

ident at will. See Brief for Appellee in No. 17–56324 (CA9),

pp. 1, 10, 13–19 (citing Designating an Acting Director of

the Bureau of Consumer Financial Protection, 41 Op. OLC

___, ___ (Nov. 25, 2017)). Amicus further observes that cur-

rent CFPB Director Kathleen Kraninger, now responsible

for enforcing the demand, agrees with the Solicitor Gen-

eral’s position in this case that her for-cause removal pro-

tection is unconstitutional. See Brief for Respondent on

Pet. for Cert. 20; Letter from K. Kraninger, CFPB Director,

to M. McConnell, Majority Leader, U. S. Senate, p. 2 (Sept.

17, 2019); Letter from K. Kraninger, CFPB Director, to N.

Pelosi, Speaker, U. S. House of Representatives, p. 2 (Sept.

17, 2019).1 In amicus’ view, these developments reveal that

the demand would have been issued—and would continue

——————

1 Director Kraninger did not indicate whether she would disregard her

statutory removal protection if the President attempted to remove her

without cause.

Cite as: 591 U. S. ____ (2020) 9

Opinion of the Court

to be enforced—even in the absence of the CFPB Director’s

removal protection, making the asserted separation of pow-

ers dispute “artificial.” Brief for Court-Appointed Amicus

Curiae 22.

Even if that were true, it would not deprive us of jurisdic-

tion. Amicus’ traceability argument appears to challenge

petitioner’s Article III standing. See Lujan v. Defenders of

Wildlife, 504 U. S. 555, 560 (1992) (explaining that the

plaintiff ’s injury must be “fairly traceable to the challenged

action of the defendant” (internal quotation marks and al-

terations omitted)). But amicus’ argument does not cast

any doubt on the jurisdiction of the District Court because

petitioner is the defendant and did not invoke the Court’s

jurisdiction. See Bond v. United States, 564 U. S. 211, 217

(2011) (When the plaintiff has standing, “Article III does

not restrict the opposing party’s ability to object to relief be-

ing sought at its expense.”).

It is true that “standing must be met by persons seeking

appellate review, just as it must be met by persons appear-

ing in courts of first instance.” Hollingsworth v. Perry, 570

U. S. 693, 705 (2013) (internal quotation marks omitted).

But petitioner’s appellate standing is beyond dispute. Peti-

tioner is compelled to comply with the civil investigative de-

mand and to provide documents it would prefer to withhold,

a concrete injury. That injury is traceable to the decision

below and would be fully redressed if we were to reverse the

judgment of the Court of Appeals and remand with instruc-

tions to deny the Government’s petition to enforce the

demand.

Without engaging with these principles, amicus contends

that a litigant wishing to challenge an executive act on the

basis of the President’s removal power must show that the

challenged act would not have been taken if the responsible

official had been subject to the President’s control. See

Brief for Court-Appointed Amicus Curiae 21–24. Our prec-

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edents say otherwise. We have held that a litigant chal-

lenging governmental action as void on the basis of the sep-

aration of powers is not required to prove that the Govern-

ment’s course of conduct would have been different in a

“counterfactual world” in which the Government had acted

with constitutional authority. Free Enterprise Fund, 561

U. S., at 512, n. 12. In the specific context of the President’s

removal power, we have found it sufficient that the chal-

lenger “sustain[s] injury” from an executive act that alleg-

edly exceeds the official’s authority. Bowsher v. Synar, 478

U. S. 714, 721 (1986).

Second, amicus contends that the proper context for as-

sessing the constitutionality of an officer’s removal re-

striction is a contested removal. See Brief for Court-Ap-

pointed Amicus Curiae 24–27. While that is certainly one

way to review a removal restriction, it is not the only way.

Our precedents have long permitted private parties ag-

grieved by an official’s exercise of executive power to chal-

lenge the official’s authority to wield that power while insu-

lated from removal by the President. See Bowsher, 478

U. S., at 721 (lawsuit filed by aggrieved third party in the

absence of contested removal); Free Enterprise Fund, 561

U. S., at 487 (same); Morrison, 487 U. S., at 668–669 (de-

fense to subpoena asserted by third party in the absence of

contested removal). Indeed, we have expressly “reject[ed]”

the “argument that consideration of the effect of a removal

provision is not ‘ripe’ until that provision is actually used,”

because when such a provision violates the separation of

powers it inflicts a “here-and-now” injury on affected third

parties that can be remedied by a court. Bowsher, 478 U. S.,

at 727, n. 5 (internal quotation marks omitted). The Court

of Appeals therefore correctly entertained petitioner’s con-

stitutional defense on the merits.

Lastly, amicus contends that we should dismiss the case

because the parties agree on the merits of the constitutional

question and the case therefore lacks “adverseness.” Tr. of

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Opinion of the Court

Oral Arg. 42–43, 45–46. That contention, however, is fore-

closed by United States v. Windsor, 570 U. S. 744 (2013).

There, we explained that a lower court order that presents

real-world consequences for the Government and its adver-

sary suffices to support Article III jurisdiction—even if “the

Executive may welcome” an adverse order that “is accom-

panied by the constitutional ruling it wants.” Id., at 758.

Here, petitioner and the Government disagree about

whether petitioner must comply with the civil investigative

demand. The lower courts sided with the Government, and

the Government has not volunteered to relinquish that vic-

tory and withdraw the demand. To the contrary, while the

Government agrees that the agency is unconstitutionally

structured, it believes it may nevertheless enforce the de-

mand on remand. See infra, at 30. Accordingly, our “deci-

sion will have real meaning” for the parties. INS v.

Chadha, 462 U. S. 919, 939 (1983). And, as in Windsor, any

prudential concerns with deciding an important legal ques-

tion in this posture can be addressed by “the practice of en-

tertaining arguments made by an amicus when the Solici-

tor General confesses error with respect to a judgment

below,” which we have done. 570 U. S., at 760.

We therefore turn to the merits of petitioner’s constitu-

tional challenge.

III

We hold that the CFPB’s leadership by a single individual

removable only for inefficiency, neglect, or malfeasance vi-

olates the separation of powers.

A

Article II provides that “[t]he executive Power shall be

vested in a President,” who must “take Care that the Laws

be faithfully executed.” Art. II, §1, cl. 1; id., §3. The entire

“executive Power” belongs to the President alone. But be-

cause it would be “impossib[le]” for “one man” to “perform

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all the great business of the State,” the Constitution as-

sumes that lesser executive officers will “assist the supreme

Magistrate in discharging the duties of his trust.” 30 Writ-

ings of George Washington 334 (J. Fitzpatrick ed. 1939).

These lesser officers must remain accountable to the

President, whose authority they wield. As Madison ex-

plained, “[I]f any power whatsoever is in its nature Execu-

tive, it is the power of appointing, overseeing, and control-

ling those who execute the laws.” 1 Annals of Cong. 463

(1789). That power, in turn, generally includes the ability

to remove executive officials, for it is “only the authority

that can remove” such officials that they “must fear and, in

the performance of [their] functions, obey.” Bowsher, 478

U. S., at 726 (internal quotation marks omitted).

The President’s removal power has long been confirmed

by history and precedent. It “was discussed extensively in

Congress when the first executive departments were cre-

ated” in 1789. Free Enterprise Fund, 561 U. S., at 492. “The

view that ‘prevailed, as most consonant to the text of the

Constitution’ and ‘to the requisite responsibility and har-

mony in the Executive Department,’ was that the executive

power included a power to oversee executive officers

through removal.” Ibid. (quoting Letter from James Madi-

son to Thomas Jefferson (June 30, 1789), 16 Documentary

History of the First Federal Congress 893 (2004)). The First

Congress’s recognition of the President’s removal power in

1789 “provides contemporaneous and weighty evidence of

the Constitution’s meaning,” Bowsher, 478 U. S., at 723 (in-

ternal quotation marks omitted), and has long been the

“settled and well understood construction of the Constitu-

tion,” Ex parte Hennen, 13 Pet. 230, 259 (1839).

The Court recognized the President’s prerogative to re-

move executive officials in Myers v. United States, 272 U. S.

52. Chief Justice Taft, writing for the Court, conducted an

exhaustive examination of the First Congress’s determina-

Cite as: 591 U. S. ____ (2020) 13

Opinion of the Court

tion in 1789, the views of the Framers and their contempo-

raries, historical practice, and our precedents up until that

point. He concluded that Article II “grants to the President”

the “general administrative control of those executing the

laws, including the power of appointment and removal of

executive officers.” Id., at 163–164 (emphasis added). Just

as the President’s “selection of administrative officers is es-

sential to the execution of the laws by him, so must be his

power of removing those for whom he cannot continue to be

responsible.” Id., at 117. “[T]o hold otherwise,” the Court

reasoned, “would make it impossible for the President . . .

to take care that the laws be faithfully executed.” Id.,

at 164.

We recently reiterated the President’s general removal

power in Free Enterprise Fund. “Since 1789,” we recapped,

“the Constitution has been understood to empower the

President to keep these officers accountable—by removing

them from office, if necessary.” 561 U. S., at 483. Although

we had previously sustained congressional limits on that

power in certain circumstances, we declined to extend those

limits to “a new situation not yet encountered by the

Court”—an official insulated by two layers of for-cause re-

moval protection. Id., at 483, 514. In the face of that novel

impediment to the President’s oversight of the Executive

Branch, we adhered to the general rule that the President

possesses “the authority to remove those who assist him in

carrying out his duties.” Id., at 513–514.

Free Enterprise Fund left in place two exceptions to the

President’s unrestricted removal power. First, in Humph-

rey’s Executor, decided less than a decade after Myers, the

Court upheld a statute that protected the Commissioners of

the FTC from removal except for “inefficiency, neglect of

duty, or malfeasance in office.” 295 U. S., at 620 (quoting

15 U. S. C. §41). In reaching that conclusion, the Court

stressed that Congress’s ability to impose such removal re-

strictions “will depend upon the character of the office.” 295

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U. S., at 631.

Because the Court limited its holding “to officers of the

kind here under consideration,” id., at 632, the contours of

the Humphrey’s Executor exception depend upon the char-

acteristics of the agency before the Court. Rightly or

wrongly, the Court viewed the FTC (as it existed in 1935)

as exercising “no part of the executive power.” Id., at 628.

Instead, it was “an administrative body” that performed

“specified duties as a legislative or as a judicial aid.” Ibid.

It acted “as a legislative agency” in “making investigations

and reports” to Congress and “as an agency of the judiciary”

in making recommendations to courts as a master in chan-

cery. Ibid. “To the extent that [the FTC] exercise[d] any

executive function[,] as distinguished from executive power

in the constitutional sense,” it did so only in the discharge

of its “quasi-legislative or quasi-judicial powers.” Ibid. (em-

phasis added).2

The Court identified several organizational features that

helped explain its characterization of the FTC as non-exec-

utive. Composed of five members—no more than three from

the same political party—the Board was designed to be

“non-partisan” and to “act with entire impartiality.” Id., at

624; see id., at 619–620. The FTC’s duties were “neither

political nor executive,” but instead called for “the trained

judgment of a body of experts” “informed by experience.”

Id., at 624 (internal quotation marks omitted). And the

Commissioners’ staggered, seven-year terms enabled the

——————

2 The Court’s conclusion that the FTC did not exercise executive power

has not withstood the test of time. As we observed in Morrison v. Olson,

487 U. S. 654 (1988), “[I]t is hard to dispute that the powers of the FTC

at the time of Humphrey’s Executor would at the present time be consid-

ered ‘executive,’ at least to some degree.” Id., at 690, n. 28. See also

Arlington v. FCC, 569 U. S. 290, 305, n. 4 (2013) (even though the activ-

ities of administrative agencies “take ‘legislative’ and ‘judicial’ forms,”

“they are exercises of—indeed, under our constitutional structure they

must be exercises of—the ‘executive Power’ ” (quoting Art. II, §1, cl. 1)).

Cite as: 591 U. S. ____ (2020) 15

Opinion of the Court

agency to accumulate technical expertise and avoid a “com-

plete change” in leadership “at any one time.” Ibid.

In short, Humphrey’s Executor permitted Congress to

give for-cause removal protections to a multimember body

of experts, balanced along partisan lines, that performed

legislative and judicial functions and was said not to exer-

cise any executive power. Consistent with that understand-

ing, the Court later applied “[t]he philosophy of Humphrey’s

Executor” to uphold for-cause removal protections for the

members of the War Claims Commission—a three-member

“adjudicatory body” tasked with resolving claims for com-

pensation arising from World War II. Wiener v. United

States, 357 U. S. 349, 356 (1958).

While recognizing an exception for multimember bodies

with “quasi-judicial” or “quasi-legislative” functions,

Humphrey’s Executor reaffirmed the core holding of Myers

that the President has “unrestrictable power . . . to remove

purely executive officers.” 295 U. S., at 632. The Court

acknowledged that between purely executive officers on the

one hand, and officers that closely resembled the FTC Com-

missioners on the other, there existed “a field of doubt” that

the Court left “for future consideration.” Ibid.

We have recognized a second exception for inferior offic-

ers in two cases, United States v. Perkins and Morrison v.

Olson.3 In Perkins, we upheld tenure protections for a na-

val cadet-engineer. 116 U. S., at 485. And, in Morrison, we

upheld a provision granting good-cause tenure protection to

——————

3 Article II distinguishes between two kinds of officers—principal offic-

ers (who must be appointed by the President with the advice and consent

of the Senate) and inferior officers (whose appointment Congress may

vest in the President, courts, or heads of Departments). §2, cl. 2. While

“[o]ur cases have not set forth an exclusive criterion for distinguishing

between principal and inferior officers,” we have in the past examined

factors such as the nature, scope, and duration of an officer’s duties. Ed-

mond v. United States, 520 U. S. 651, 661 (1997). More recently, we have

focused on whether the officer’s work is “directed and supervised” by a

principal officer. Id., at 663.

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an independent counsel appointed to investigate and pros-

ecute particular alleged crimes by high-ranking Govern-

ment officials. 487 U. S., at 662–663, 696–697. Backing

away from the reliance in Humphrey’s Executor on the con-

cepts of “quasi-legislative” and “quasi-judicial” power, we

viewed the ultimate question as whether a removal re-

striction is of “such a nature that [it] impede[s] the Presi-

dent’s ability to perform his constitutional duty.” 487 U. S.,

at 691. Although the independent counsel was a single per-

son and performed “law enforcement functions that typi-

cally have been undertaken by officials within the Execu-

tive Branch,” we concluded that the removal protections did

not unduly interfere with the functioning of the Executive

Branch because “the independent counsel [was] an inferior

officer under the Appointments Clause, with limited juris-

diction and tenure and lacking policymaking or significant

administrative authority.” Ibid.

These two exceptions—one for multimember expert agen-

cies that do not wield substantial executive power, and one

for inferior officers with limited duties and no policymaking

or administrative authority—“represent what up to now

have been the outermost constitutional limits of permissi-

ble congressional restrictions on the President’s removal

power.” PHH, 881 F. 3d, at 196 (Kavanaugh, J., dissenting)

(internal quotation marks omitted).

B

Neither Humphrey’s Executor nor Morrison resolves

whether the CFPB Director’s insulation from removal is

constitutional. Start with Humphrey’s Executor. Unlike

the New Deal-era FTC upheld there, the CFPB is led by a

single Director who cannot be described as a “body of ex-

perts” and cannot be considered “non-partisan” in the same

sense as a group of officials drawn from both sides of the

aisle. 295 U. S., at 624. Moreover, while the staggered

Cite as: 591 U. S. ____ (2020) 17

Opinion of the Court

terms of the FTC Commissioners prevented complete turn-

overs in agency leadership and guaranteed that there

would always be some Commissioners who had accrued sig-

nificant expertise, the CFPB’s single-Director structure and

five-year term guarantee abrupt shifts in agency leadership

and with it the loss of accumulated expertise.

In addition, the CFPB Director is hardly a mere legisla-

tive or judicial aid. Instead of making reports and recom-

mendations to Congress, as the 1935 FTC did, the Director

possesses the authority to promulgate binding rules flesh-

ing out 19 federal statutes, including a broad prohibition on

unfair and deceptive practices in a major segment of the

U. S. economy. And instead of submitting recommended

dispositions to an Article III court, the Director may unilat-

erally issue final decisions awarding legal and equitable re-

lief in administrative adjudications. Finally, the Director’s

enforcement authority includes the power to seek daunting

monetary penalties against private parties on behalf of the

United States in federal court—a quintessentially execu-

tive power not considered in Humphrey’s Executor.4

The logic of Morrison also does not apply. Everyone

agrees the CFPB Director is not an inferior officer, and her

duties are far from limited. Unlike the independent coun-

sel, who lacked policymaking or administrative authority,

——————

4 The dissent would have us ignore the reasoning of Humphrey’s Exec-

utor and instead apply the decision only as part of a reimagined Humph-

rey’s-through-Morrison framework. See post, at 18, n. 7, 19–22 (KAGAN,

J., concurring in judgment with respect to severability and dissenting in

part) (hereinafter dissent). But we take the decision on its own terms,

not through gloss added by a later Court in dicta. The dissent also criti-

cizes us for suggesting that the 1935 FTC may have had lesser responsi-

bilities than the present FTC. See post, at 27, n. 10. Perhaps the FTC

possessed broader rulemaking, enforcement, and adjudicatory powers

than the Humphrey’s Court appreciated. Perhaps not. Either way, what

matters is the set of powers the Court considered as the basis for its de-

cision, not any latent powers that the agency may have had not alluded

to by the Court.

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the Director has the sole responsibility to administer 19

separate consumer-protection statutes that cover every-

thing from credit cards and car payments to mortgages and

student loans. It is true that the independent counsel in

Morrison was empowered to initiate criminal investigations

and prosecutions, and in that respect wielded core executive

power. But that power, while significant, was trained in-

ward to high-ranking Governmental actors identified by

others, and was confined to a specified matter in which the

Department of Justice had a potential conflict of interest.

By contrast, the CFPB Director has the authority to bring

the coercive power of the state to bear on millions of private

citizens and businesses, imposing even billion-dollar penal-

ties through administrative adjudications and civil actions.

In light of these differences, the constitutionality of the

CFPB Director’s insulation from removal cannot be settled

by Humphrey’s Executor or Morrison alone.

C

The question instead is whether to extend those prece-

dents to the “new situation” before us, namely an independ-

ent agency led by a single Director and vested with signifi-

cant executive power. Free Enterprise Fund, 561 U. S., at

483. We decline to do so. Such an agency has no basis in

history and no place in our constitutional structure.

1

“Perhaps the most telling indication of [a] severe consti-

tutional problem” with an executive entity “is [a] lack of his-

torical precedent” to support it. Id., at 505 (internal quota-

tion marks omitted). An agency with a structure like that

of the CFPB is almost wholly unprecedented.

After years of litigating the agency’s constitutionality,

the Courts of Appeals, parties, and amici have identified

“only a handful of isolated” incidents in which Congress has

provided good-cause tenure to principal officers who wield

Cite as: 591 U. S. ____ (2020) 19

Opinion of the Court

power alone rather than as members of a board or commis-

sion. Ibid. “[T]hese few scattered examples”—four to be

exact—shed little light. NLRB v. Noel Canning, 573 U. S.

513, 538 (2014).

First, the CFPB’s defenders point to the Comptroller of

the Currency, who enjoyed removal protection for one year

during the Civil War. That example has rightly been dis-

missed as an aberration. It was “adopted without discus-

sion” during the heat of the Civil War and abandoned before

it could be “tested by executive or judicial inquiry.” Myers,

272 U. S., at 165. (At the time, the Comptroller may also

have been an inferior officer, given that he labored “under

the general direction of the Secretary of the Treasury.” Ch.

58, 12 Stat. 665.)5

Second, the supporters of the CFPB point to the Office of

the Special Counsel (OSC), which has been headed by a sin-

gle officer since 1978.6 But this first enduring single-leader

office, created nearly 200 years after the Constitution was

ratified, drew a contemporaneous constitutional objection

from the Office of Legal Counsel under President Carter

and a subsequent veto on constitutional grounds by Presi-

dent Reagan. See Memorandum Opinion for the General

Counsel, Civil Service Commission, 2 Op. OLC 120, 122

(1978); Public Papers of the Presidents, Ronald Reagan,

Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991).7 In any event,

——————

5 The dissent suggests that the Comptroller still enjoyed some degree

of insulation after his removal protection was repealed because the Pres-

ident faced a new requirement to “communicate[ ]” his “reasons” for ter-

minating the Comptroller to the Senate. Post, at 15 (quoting Act of June

3, 1864, ch. 106, §1, 13 Stat. 100). But the President could still remove

the Comptroller for any reason so long as the President was, in the dis-

sent’s phrase, “in a firing mood.” Post, at 15.

6 The OSC should not be confused with the independent counsel in

Morrison or the special counsel recently appointed to investigate allega-

tions related to the 2016 Presidential election. Despite sharing similar

titles, those individuals have no relationship to the OSC.

7 An Act similar to the one vetoed by President Reagan was eventually

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the OSC exercises only limited jurisdiction to enforce cer-

tain rules governing Federal Government employers and

employees. See 5 U. S. C. §1212. It does not bind private

parties at all or wield regulatory authority comparable to

the CFPB.

Third, the CFPB’s defenders note that the Social Security

Administration (SSA) has been run by a single Administra-

tor since 1994. That example, too, is comparatively recent

and controversial. President Clinton questioned the consti-

tutionality of the SSA’s new single-Director structure upon

signing it into law. See Public Papers of the Presidents,

William J. Clinton, Vol. II, Aug. 15, 1994, pp. 1471–1472

(1995) (inviting a “corrective amendment” from Congress).

In addition, unlike the CFPB, the SSA lacks the authority

to bring enforcement actions against private parties. Its

role is largely limited to adjudicating claims for Social

Security benefits.

The only remaining example is the Federal Housing Fi-

nance Agency (FHFA), created in 2008 to assume responsi-

bility for Fannie Mae and Freddie Mac. That agency is es-

sentially a companion of the CFPB, established in response

to the same financial crisis. See Housing and Economic Re-

covery Act of 2008, 122 Stat. 2654. It regulates primarily

Government-sponsored enterprises, not purely private ac-

tors. And its single-Director structure is a source of ongoing

controversy. Indeed, it was recently held unconstitutional

by the Fifth Circuit, sitting en banc. See Collins v.

Mnuchin, 938 F. 3d 553, 587–588 (2019).

With the exception of the one-year blip for the Comptrol-

ler of the Currency, these isolated examples are modern and

contested. And they do not involve regulatory or enforce-

ment authority remotely comparable to that exercised by

——————

signed by President George H. W. Bush after extensive negotiations and

compromises with Congress. See Public Papers of the Presidents, George

H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).

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Opinion of the Court

the CFPB. The CFPB’s single-Director structure is an in-

novation with no foothold in history or tradition.8

2

In addition to being a historical anomaly, the CFPB’s sin-

gle-Director configuration is incompatible with our consti-

tutional structure. Aside from the sole exception of the

Presidency, that structure scrupulously avoids concentrat-

ing power in the hands of any single individual.

“The Framers recognized that, in the long term, struc-

tural protections against abuse of power were critical to

preserving liberty.” Bowsher, 478 U. S., at 730. Their solu-

tion to governmental power and its perils was simple: di-

vide it. To prevent the “gradual concentration” of power in

the same hands, they enabled “[a]mbition . . . to counteract

ambition” at every turn. The Federalist No. 51, p. 349 (J.

Cooke ed. 1961) (J. Madison). At the highest level, they

“split the atom of sovereignty” itself into one Federal Gov-

ernment and the States. Gamble v. United States, 587 U. S.

___, ___ (2019) (slip op., at 9) (internal quotation marks

omitted). They then divided the “powers of the new Federal

Government into three defined categories, Legislative, Ex-

ecutive, and Judicial.” Chadha, 462 U. S., at 951.

They did not stop there. Most prominently, the Framers

bifurcated the federal legislative power into two Chambers:

the House of Representatives and the Senate, each com-

posed of multiple Members and Senators. Art. I, §§2, 3.

The Executive Branch is a stark departure from all this

——————

8 The dissent categorizes the CFPB as one of many “financial regula-

tors” that have historically enjoyed some insulation from the President.

See post, at 11–16. But even assuming financial institutions like the

Second Bank and the Federal Reserve can claim a special historical sta-

tus, the CFPB is in an entirely different league. It acts as a mini legis-

lature, prosecutor, and court, responsible for creating substantive rules

for a wide swath of industries, prosecuting violations, and levying knee-

buckling penalties against private citizens. See supra, at 4–5. And, of

course, it is the only agency of its kind run by a single Director.

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division. The Framers viewed the legislative power as a

special threat to individual liberty, so they divided that

power to ensure that “differences of opinion” and the “jar-

rings of parties” would “promote deliberation and circum-

spection” and “check excesses in the majority.” See The

Federalist No. 70, at 475 (A. Hamilton); see also id., No. 51,

at 350. By contrast, the Framers thought it necessary to

secure the authority of the Executive so that he could carry

out his unique responsibilities. See id., No. 70, at 475–478.

As Madison put it, while “the weight of the legislative au-

thority requires that it should be . . . divided, the weakness

of the executive may require, on the other hand, that it

should be fortified.” Id., No. 51, at 350.

The Framers deemed an energetic executive essential to

“the protection of the community against foreign attacks,”

“the steady administration of the laws,” “the protection of

property,” and “the security of liberty.” Id., No. 70, at 471.

Accordingly, they chose not to bog the Executive down with

the “habitual feebleness and dilatoriness” that comes with

a “diversity of views and opinions.” Id., at 476. Instead,

they gave the Executive the “[d]ecision, activity, secrecy,

and dispatch” that “characterise the proceedings of one

man.” Id., at 472.

To justify and check that authority—unique in our con-

stitutional structure—the Framers made the President the

most democratic and politically accountable official in Gov-

ernment. Only the President (along with the Vice Presi-

dent) is elected by the entire Nation. And the President’s

political accountability is enhanced by the solitary nature

of the Executive Branch, which provides “a single object for

the jealousy and watchfulness of the people.” Id., at 479.

The President “cannot delegate ultimate responsibility or

the active obligation to supervise that goes with it,” because

Article II “makes a single President responsible for the ac-

tions of the Executive Branch.” Free Enterprise Fund, 561

U. S., at 496–497 (quoting Clinton v. Jones, 520 U. S. 681,

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Opinion of the Court

712–713 (1997) (BREYER, J., concurring in judgment)).

The resulting constitutional strategy is straightforward:

divide power everywhere except for the Presidency, and

render the President directly accountable to the people

through regular elections. In that scheme, individual exec-

utive officials will still wield significant authority, but that

authority remains subject to the ongoing supervision and

control of the elected President. Through the President’s

oversight, “the chain of dependence [is] preserved,” so that

“the lowest officers, the middle grade, and the highest” all

“depend, as they ought, on the President, and the President

on the community.” 1 Annals of Cong. 499 (J. Madison).

The CFPB’s single-Director structure contravenes this

carefully calibrated system by vesting significant govern-

mental power in the hands of a single individual accounta-

ble to no one. The Director is neither elected by the people

nor meaningfully controlled (through the threat of removal)

by someone who is. The Director does not even depend on

Congress for annual appropriations. See The Federalist

No. 58, at 394 (J. Madison) (describing the “power over the

purse” as the “most compleat and effectual weapon” in rep-

resenting the interests of the people). Yet the Director may

unilaterally, without meaningful supervision, issue final

regulations, oversee adjudications, set enforcement priori-

ties, initiate prosecutions, and determine what penalties to

impose on private parties. With no colleagues to persuade,

and no boss or electorate looking over her shoulder, the Di-

rector may dictate and enforce policy for a vital segment of

the economy affecting millions of Americans.

The CFPB Director’s insulation from removal by an ac-

countable President is enough to render the agency’s struc-

ture unconstitutional. But several other features of the

CFPB combine to make the Director’s removal protection

even more problematic. In addition to lacking the most di-

rect method of presidential control—removal at will—the

agency’s unique structure also forecloses certain indirect

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methods of Presidential control.

Because the CFPB is headed by a single Director with a

five-year term, some Presidents may not have any oppor-

tunity to shape its leadership and thereby influence its ac-

tivities. A President elected in 2020 would likely not ap-

point a CFPB Director until 2023, and a President elected

in 2028 may never appoint one. That means an unlucky

President might get elected on a consumer-protection plat-

form and enter office only to find herself saddled with a

holdover Director from a competing political party who is

dead set against that agenda. To make matters worse, the

agency’s single-Director structure means the President will

not have the opportunity to appoint any other leaders—

such as a chair or fellow members of a Commission or

Board—who can serve as a check on the Director’s author-

ity and help bring the agency in line with the President’s

preferred policies.

The CFPB’s receipt of funds outside the appropriations

process further aggravates the agency’s threat to Presiden-

tial control. The President normally has the opportunity to

recommend or veto spending bills that affect the operation

of administrative agencies. See Art. I, §7, cl. 2; Art. II, §3.

And, for the past century, the President has annually sub-

mitted a proposed budget to Congress for approval. See

Budget and Accounting Act, 1921, ch. 18, §201, 42 Stat. 20.

Presidents frequently use these budgetary tools “to influ-

ence the policies of independent agencies.” PHH, 881 F. 3d,

at 147 (Henderson, J., dissenting) (citing Pasachoff, The

President’s Budget as a Source of Agency Policy Control,

125 Yale L. J. 2182, 2191, 2203–2204 (2016)). But no simi-

lar opportunity exists for the President to influence the

CFPB Director. Instead, the Director receives over $500

million per year to fund the agency’s chosen priorities. And

the Director receives that money from the Federal Reserve,

which is itself funded outside of the annual appropriations

process. This financial freedom makes it even more likely

Cite as: 591 U. S. ____ (2020) 25

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that the agency will “slip from the Executive’s control, and

thus from that of the people.” Free Enterprise Fund, 561

U. S., at 499.9

3

Amicus raises three principal arguments in the agency’s

defense. At the outset, amicus questions the textual basis

for the removal power and highlights statements from Mad-

ison, Hamilton, and Chief Justice Marshall expressing “het-

erodox” views on the subject. Brief for Court-Appointed

Amicus Curiae 4–5, 28–29. But those concerns are mis-

placed. It is true that “there is no ‘removal clause’ in the

Constitution,” id., at 1, but neither is there a “separation of

powers clause” or a “federalism clause.” These foundational

doctrines are instead evident from the Constitution’s vest-

ing of certain powers in certain bodies. As we have ex-

plained many times before, the President’s removal power

stems from Article II’s vesting of the “executive Power” in

the President. Free Enterprise Fund, 561 U. S., at 483

(quoting Art. II, §1, cl. 1). As for the opinions of Madison,

Hamilton, and Chief Justice Marshall, we have already con-

sidered the statements cited by amicus and discounted

them in light of their context (Madison), the fact they reflect

initial impressions later abandoned by the speaker (Hamil-

ton), or their subsequent rejection as ill-considered dicta

——————

9 Amicus and the dissent try to diminish the CFPB’s insulation from

Presidential control by observing that the CFPB’s final rules can be set

aside by a super majority of the Financial Stability and Oversight Coun-

cil (FSOC). See Brief for Court-Appointed Amicus Curiae 40; post, at 33,

n. 13, 36. But the FSOC’s veto power is statutorily reserved for extreme

situations, when two-thirds of the Council concludes that a CFPB regu-

lation would “put the safety and soundness of the United States banking

system or the stability of the financial system of the United States at

risk.” 12 U. S. C. §§5513(a), (c)(3). That narrow escape hatch has no

impact on the CFPB’s enforcement or adjudicatory authority and has

never been used in the ten years since the agency’s creation. It certainly

does not render the CFPB’s independent, single-Director structure

constitutional.

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(Chief Justice Marshall). See Free Enterprise Fund, 561

U. S., at 500, n. 6 (Madison); Myers, 272 U. S., at 136–139,

142–144 (Hamilton and Chief Justice Marshall).10

Next, amicus offers a grand theory of our removal prece-

dents that, if accepted, could leave room for an agency like

the CFPB—and many other innovative intrusions on Arti-

cle II. According to amicus, Humphrey’s Executor and Mor-

rison establish a general rule that Congress may impose

“modest” restrictions on the President’s removal power,

with only two limited exceptions. Brief for Court-Appointed

Amicus Curiae 33–37. Congress may not reserve a role for

itself in individual removal decisions (as it attempted to do

in Myers and Bowsher). And it may not eliminate the Pres-

ident’s removal power altogether (as it effectively did in

——————

10 The dissent likewise points to Madison’s statement in The Federalist

No. 39 that the “tenure” of “ministerial offices generally will be a subject

of legal regulation.” Post, at 10 (quoting The Federalist No. 39, p. 253 (J.

Cooke ed. 1961)). But whatever Madison may have meant by that state-

ment, he later led the charge in contending, on the floor of the First Con-

gress, that “inasmuch as the power of removal is of an Executive nature

. . . it is beyond the reach of the Legislative body.” 1 Annals of Cong. 464

(1789); see also id., at 462–464, 495–496. Like the dissent in Free Enter-

prise Fund, the dissent goes on to “attribute[ ] to Madison a belief that

. . . the Comptroller[ ] could be made independent of the President. But

Madison’s actual proposal, consistent with his view of the Constitution,

was that the Comptroller hold office for a term of ‘years, unless sooner

removed by the President’; he would thus be ‘dependent upon the Presi-

dent, because he can be removed by him,’ and also ‘dependent upon the

Senate, because they must consent to his [reappointment] for every term

of years.’ ” Free Enterprise Fund v. Public Company Accounting Over-

sight Bd., 561 U. S. 477, 499, 500 n. 6 (2010) (citation omitted) (quoting

1 Annals of Cong. 612). See post, at 10, n. 4. The dissent further notes

that, at the time of the founding, some States placed limitations on their

Governors’ removal power. See post, at 7. But the Framers hardly

viewed State Governors as a reliable guide in fashioning the Federal Ex-

ecutive. Indeed, they expressly rejected the “executive council” structure

favored by most States, fearing that subjecting the President to over-

sight, as the States had, would “distract and . . . enervate the whole sys-

tem of administration” and inject it with “habitual feebleness and dilato-

riness.” The Federalist No. 70, at 473, 476 (A. Hamilton).

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Free Enterprise Fund). Outside those two situations, ami-

cus argues, Congress is generally free to constrain the Pres-

ident’s removal power. See also post, at 16–22 (KAGAN, J.,

concurring in judgment with respect to severability and dis-

senting in part) (hereinafter dissent) (expressing similar

view).

But text, first principles, the First Congress’s decision in

1789, Myers, and Free Enterprise Fund all establish that

the President’s removal power is the rule, not the exception.

While we do not revisit Humphrey’s Executor or any other

precedent today, we decline to elevate it into a freestanding

invitation for Congress to impose additional restrictions on

the President’s removal authority.11

Finally, amicus contends that if we identify a constitu-

tional problem with the CFPB’s structure, we should avoid

——————

11 Building on amicus’ proposal, the dissent would endorse whatever

“the times demand, so long as the President retains the ability to carry

out his constitutional functions.” Post, at 4. But that amorphous test

provides no real limiting principle. The “clearest” (and only) “example”

the dissent can muster for what may be prohibited is a for-cause removal

restriction placed on the President’s “close military or diplomatic advis-

ers.” Post, at 17. But that carveout makes no logical or constitutional

sense. In the dissent’s view, for-cause removal restrictions are permissi-

ble because they guarantee the President “meaningful control” over his

subordinates. Post, at 28 (internal quotation marks and alterations

omitted); see also post, at 8, 20, 26, 36. If that is the theory, then what

is the harm in giving the President the same “meaningful control” over

his close advisers? The dissent claims to see a constitutional distinction

between the President’s “own constitutional duties in foreign relations

and war” and his duty to execute laws passed by Congress. Post, at 13.

But the same Article that establishes the President’s foreign relations

and war duties expressly entrusts him to take care that the laws be faith-

fully executed. And, from the perspective of the governed, it is far from

clear that the President’s core and traditional powers present greater

cause for concern than peripheral and modern ones. If anything, “[t]he

growth of the Executive Branch, which now wields vast power and

touches almost every aspect of daily life, heightens the concern that it

may slip from the Executive’s control, and thus from that of the people.”

Free Enterprise Fund, 561 U. S., at 499 (emphasis added).

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it by broadly construing the statutory grounds for removing

the CFPB Director from office. See Brief for Court-Ap-

pointed Amicus Curiae 50–53; Tr. of Oral Arg. 57–62. The

Dodd-Frank Act provides that the Director may be removed

for “inefficiency, neglect of duty, or malfeasance in office.”

12 U. S. C. §5491(c)(3). In amicus’ view, that language

could be interpreted to reserve substantial discretion to the

President. Brief for Court-Appointed Amicus Curiae 51.

We are not persuaded. For one, Humphrey’s Executor im-

plicitly rejected an interpretation that would leave the

President free to remove an officer based on disagreements

about agency policy. See 295 U. S., at 619, 625–626. In

addition, while both amicus and the House of Representa-

tives invite us to adopt whatever construction would cure

the constitutional problem, they have not advanced any

workable standard derived from the statutory language.

Amicus suggests that the proper standard might permit re-

movals based on general policy disagreements, but not spe-

cific ones; the House suggests that the permissible bases for

removal might vary depending on the context and the Pres-

idential power involved. See Tr. of Oral Arg. 58–60, 76–77.

They do not attempt to root either of those standards in the

statutory text. Further, although nearly identical language

governs the removal of some two-dozen multimember inde-

pendent agencies, amicus suggests that the standard

should vary from agency to agency, morphing as necessary

to avoid constitutional doubt. Tr. of Oral Arg. 55–56. We

decline to embrace such an uncertain and elastic approach

to the text.

Amicus and the House also fail to engage with the Dodd-

Frank Act as a whole, which makes plain that the CFPB is

an “independent bureau.” 12 U. S. C. §5491(a); see also 44

U. S. C. §3502(5) (listing the CFPB as an “independent reg-

ulatory agency”). Neither amicus nor the House explains

how the CFPB would be “independent” if its head were re-

quired to implement the President’s policies upon pain of

Cite as: 591 U. S. ____ (2020) 29

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removal. See Black’s Law Dictionary 838 (9th ed. 2009) (de-

fining “independent” as “[n]ot subject to the control or influ-

ence of another”). The Constitution might of course compel

the agency to be dependent on the President notwithstand-

ing Congress’s contrary intent, but that result cannot fairly

be inferred from the statute Congress enacted.

Constitutional avoidance is not a license to rewrite Con-

gress’s work to say whatever the Constitution needs it to

say in a given situation. Without a proffered interpretation

that is rooted in the statutory text and structure, and would

avoid the constitutional violation we have identified, we

take Congress at its word that it meant to impose a mean-

ingful restriction on the President’s removal authority.

The dissent, for its part, largely reprises points that the

Court has already considered and rejected: It notes the lack

of an express removal provision, invokes Congress’s general

power to create and define executive offices, highlights iso-

lated statements from individual Framers, downplays the

decision of 1789, minimizes Myers, brainstorms methods of

Presidential control short of removal, touts the need for cre-

ative congressional responses to technological and economic

change, and celebrates a pragmatic, flexible approach to

American governance. See post, at 1–25, 32–33, 38.

If these arguments sound familiar, it’s because they are.

They were raised by the dissent in Free Enterprise Fund.

Compare post, at 1–25, 32–33, 38, with Free Enterprise

Fund, 561 U. S., at 515–524, 530 (BREYER, J., dissenting).

The answers to these repeated concerns (beyond those we

have already covered) are the same today as they were ten

years ago. Today, as then, Congress’s “plenary control over

the salary, duties, and even existence of executive offices”

makes “Presidential oversight” more critical—not less—as

the “[o]nly” tool to “counter [Congress’s] influence.” Id., at

500 (opinion of the Court). Today, as then, the various “bu-

reaucratic minutiae” a President might use to corral agency

personnel is no substitute for at will removal. Ibid. And

30 SEILA LAW LLC v. CONSUMER FINANCIAL

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today, as always, the urge to meet new technological and

societal problems with novel governmental structures must

be tempered by constitutional restraints that are not

known—and were not chosen—for their efficiency or flexi-

bility. Id., at 499.

As we explained in Free Enterprise Fund, “One can have

a government that functions without being ruled by func-

tionaries, and a government that benefits from expertise

without being ruled by experts.” Ibid. While “[n]o one

doubts Congress’s power to create a vast and varied federal

bureaucracy,” the expansion of that bureaucracy into new

territories the Framers could scarcely have imagined only

sharpens our duty to ensure that the Executive Branch is

overseen by a President accountable to the people. Ibid.

IV

Having concluded that the CFPB’s leadership by a single

independent Director violates the separation of powers, we

now turn to the appropriate remedy. We directed the par-

ties to brief and argue whether the Director’s removal pro-

tection was severable from the other provisions of the Dodd-

Frank Act that establish the CFPB. If so, then the CFPB

may continue to exist and operate notwithstanding Con-

gress’s unconstitutional attempt to insulate the agency’s

Director from removal by the President. There is a live con-

troversy between the parties on that question, and resolv-

ing it is a necessary step in determining petitioner’s entitle-

ment to its requested relief.

As the defendant in this action, petitioner seeks a

straightforward remedy. It asks us to deny the Govern-

ment’s petition to enforce the civil investigative demand

and dismiss the case. The Government counters that the

demand, though initially issued by a Director unconstitu-

tionally insulated from removal, can still be enforced on re-

mand because it has since been ratified by an Acting Direc-

tor accountable to the President. The parties dispute

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whether this alleged ratification in fact occurred and

whether, if so, it is legally sufficient to cure the constitu-

tional defect in the original demand. That debate turns on

case-specific factual and legal questions not addressed be-

low and not briefed here. A remand for the lower Courts to

consider those questions in the first instance is therefore

the appropriate course—unless such a remand would be

futile.

In petitioner’s view, it would be. Before the Court of Ap-

peals, petitioner contended that, regardless of any ratifica-

tion, the demand is unenforceable because the statutory

provision insulating the CFPB Director from removal can-

not be severed from the other statutory provisions that de-

fine the CFPB’s authority. See Brief for Appellant in No.

17–56324 (CA9), pp. 27–28, 30–32. If petitioner is correct,

and the offending removal provision means the entire

agency is unconstitutional and powerless to act, then a re-

mand would be pointless. With no agency left with statu-

tory authority to maintain this suit or otherwise enforce the

demand, the appropriate disposition would be to reverse

with instructions to deny the Government’s petition to en-

force the agency’s demand for documents and dismiss the

case, as petitioner requests.

Accordingly, there is a live controversy over the question

of severability. And that controversy is essential to our

ability to provide petitioner the relief it seeks: If the re-

moval restriction is not severable, then we must grant the

relief requested, promptly rejecting the demand outright.

If, on the other hand, the removal restriction is severable,

we must instead remand for the Government to press its

ratification arguments in further proceedings. Unlike the

lingering ratification issue, severability presents a pure

question of law that has been fully briefed and argued by

the parties. We therefore proceed to address it.12

——————

12 JUSTICE THOMAS believes that any ratification is irrelevant. In his

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It has long been settled that “one section of a statute may

be repugnant to the Constitution without rendering the

whole act void.” Loeb v. Columbia Township Trustees, 179

U. S. 472, 490 (1900) (quoting Treasurer of Fayette Cty. v.

People’s & Drovers’ Bank, 47 Ohio St. 503, 523, 25 N. E. 697,

702 (1890)). Because a “statute bad in part is not neces-

sarily void in its entirety,” “[p]rovisions within the legisla-

tive power may stand if separable from the bad.” Dorchy v.

Kansas, 264 U. S. 286, 289–290 (1924).

“Generally speaking, when confronting a constitutional

flaw in a statute, we try to limit the solution to the problem,

severing any problematic portions while leaving the re-

mainder intact.” Free Enterprise Fund, 561 U. S., at 508

(internal quotation marks omitted). Even in the absence of

a severability clause, the “traditional” rule is that “the un-

constitutional provision must be severed unless the statute

created in its absence is legislation that Congress would not

have enacted.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678,

685 (1987). When Congress has expressly provided a sev-

erability clause, our task is simplified. We will presume

“that Congress did not intend the validity of the statute in

question to depend on the validity of the constitutionally of-

fensive provision . . . unless there is strong evidence that

Congress intended otherwise.” Id., at 686.

The only constitutional defect we have identified in the

CFPB’s structure is the Director’s insulation from removal.

If the Director were removable at will by the President, the

——————

view, even if the issuance of the demand and initiation of this suit have

been validly ratified, Director Kraninger’s activities in litigating the

case—after inheriting it from an Acting Director, but before becoming

removable at will herself in light of our decision—present a distinct con-

stitutional injury requiring immediate dismissal. See post, at 17–19

(opinion concurring in part and dissenting in part). But whether and

when the temporary involvement of an unconstitutionally insulated of-

ficer in an otherwise valid prosecution requires dismissal falls outside

the questions presented, has not been fully briefed, and is best resolved

by the lower courts in the first instance.

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constitutional violation would disappear. We must there-

fore decide whether the removal provision can be severed

from the other statutory provisions relating to the CFPB’s

powers and responsibilities.

In Free Enterprise Fund, we found a set of unconstitu-

tional removal provisions severable even in the absence of

an express severability clause because the surviving provi-

sions were capable of “functioning independently” and

“nothing in the statute’s text or historical context [made] it

evident that Congress, faced with the limitations imposed

by the Constitution, would have preferred no Board at all

to a Board whose members are removable at will.” 561

U. S., at 509 (internal quotation marks omitted).

So too here. The provisions of the Dodd-Frank Act bear-

ing on the CFPB’s structure and duties remain fully opera-

tive without the offending tenure restriction. Those provi-

sions are capable of functioning independently, and there is

nothing in the text or history of the Dodd-Frank Act that

demonstrates Congress would have preferred no CFPB to a

CFPB supervised by the President. Quite the opposite. Un-

like the Sarbanes-Oxley Act at issue in Free Enterprise

Fund, the Dodd-Frank Act contains an express severability

clause. There is no need to wonder what Congress would

have wanted if “any provision of this Act” is “held to be un-

constitutional” because it has told us: “the remainder of this

Act” should “not be affected.” 12 U. S. C. §5302.

Petitioner urges us to disregard this plain language for

three reasons. None is persuasive. First, petitioner dis-

misses the clause as non-probative “boilerplate” because it

applies “to the entire, 848-page Dodd-Frank Act” and “ap-

pears almost 600 pages before the removal provision at is-

sue.” Brief for Petitioner 45. In petitioner’s view, that

means we cannot be certain that Congress really meant to

apply the clause to each of the Act’s provisions. But boiler-

plate is boilerplate for a reason—because it offers tried-and-

true language to ensure a precise and predictable result.

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That is the case here. The language unmistakably refer-

ences “any provision of this Act.” 12 U. S. C. §5302 (empha-

sis added). And it appears in a logical and prominent place,

immediately following the Act’s title and definitions sec-

tions, reinforcing the conclusion that it applies to the en-

tirety of the Act. Congress was not required to laboriously

insert duplicative severability clauses, provision by provi-

sion, to accomplish its stated objective.

Second, petitioner points to an additional severability

clause in the Act that applies only to one of the Act’s subti-

tles. See 15 U. S. C. §8232. In petitioner’s view, that clause

would be superfluous if Congress meant the general sever-

ability clause to apply across the Act. But “our preference

for avoiding surplusage constructions is not absolute.”

Lamie v. United States Trustee, 540 U. S. 526, 536 (2004).

In this instance, the redundant language appears to reflect

the fact that the subtitle to which it refers originated as a

standalone bill that was later incorporated into Dodd-

Frank. Compare 15 U. S. C. §8232 with H. R. 2571, 111th

Cong., 1st Sess., §302 (2009). And petitioner does not offer

any construction that would give effect to both provisions,

making the redundancy both inescapable and unilluminat-

ing. See Microsoft Corp. v. i4i L. P., 564 U. S. 91, 106 (2011)

(“The canon against superfluity assists only where a com-

peting interpretation gives effect to every clause and word

of a statute.” (internal quotation marks omitted)).

Finally, petitioner argues more broadly that Congress

would not have wanted to give the President unbridled con-

trol over the CFPB’s vast authority. Petitioner highlights

the references to the CFPB’s independence in the statutory

text and legislative history, as well as in Professor Warren’s

and the Obama administration’s original proposals. See

Brief for Petitioner 43–44 (collecting examples). And peti-

tioner submits that Congress might not have exempted the

CFPB from congressional oversight via the appropriations

process if it had known that the CFPB would come under

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executive control.

These observations certainly confirm that Congress pre-

ferred an independent CFPB to a dependent one; but they

shed little light on the critical question whether Congress

would have preferred a dependent CFPB to no agency at all.

That is the only question we have the authority to decide,

and the answer seems clear. Petitioner assumes that, if we

eliminate the CFPB, regulatory and enforcement authority

over the statutes it administers would simply revert back

to the handful of independent agencies previously responsi-

ble for them. See id., at 46. But, as the Solicitor General

and House of Representatives explain, that shift would trig-

ger a major regulatory disruption and would leave appre-

ciable damage to Congress’s work in the consumer-finance

arena. See Reply Brief for Respondent 21–22; Tr. of Oral

Arg. 67–68. One of the agencies whose regulatory authority

was transferred to the CFPB no longer exists. See 12

U. S. C. §§5412–5413 (Office of Thrift Supervision). The

others do not have the staff or appropriations to absorb the

CFPB’s 1,500-employee, 500-million-dollar operations.

And none has the authority to administer the Dodd-Frank

Act’s new prohibition on unfair and deceptive practices in

the consumer-finance sector. Given these consequences, it

is far from evident that Congress would have preferred no

CFPB to a CFPB led by a Director removable at will by the

President.

JUSTICE THOMAS would have us junk our settled severa-

bility doctrine and start afresh, even though no party has

asked us to do so. See post, at 15–16, 21–24 (opinion con-

curring in part and dissenting in part). Among other

things, he objects that it is sheer “speculation” that Con-

gress would prefer that its consumer protection laws be en-

forced by a Director accountable to the President rather

than not at all. Post, at 23–24. We think it clear that Con-

gress would prefer that we use a scalpel rather than a bull-

dozer in curing the constitutional defect we identify today.

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And such an approach by this Court can come as no surprise

to Congress, which was on notice of constitutional objec-

tions to single-Director agencies by multiple past Presi-

dents from both political parties, supra, at 19–20, and en-

acted Dodd-Frank against the background of our

established severability doctrine.

As in every severability case, there may be means of rem-

edying the defect in the CFPB’s structure that the Court

lacks the authority to provide. Our severability analysis

does not foreclose Congress from pursuing alternative re-

sponses to the problem—for example, converting the CFPB

into a multimember agency. The Court’s only instrument,

however, is a blunt one. We have “the negative power to

disregard an unconstitutional enactment,” Massachusetts

v. Mellon, 262 U. S. 447, 488 (1923); see Marbury v. Madi-

son, 1 Cranch 137, 178 (1803), but we cannot re-write Con-

gress’s work by creating offices, terms, and the like. “[S]uch

editorial freedom . . . belongs to the Legislature, not the Ju-

diciary.” Free Enterprise Fund, 561 U. S., at 510.

Because we find the Director’s removal protection sever-

able from the other provisions of Dodd-Frank that establish

the CFPB, we remand for the Court of Appeals to consider

whether the civil investigative demand was validly ratified.

* * *

A decade ago, we declined to extend Congress’s authority

to limit the President’s removal power to a new situation,

never before confronted by the Court. We do the same to-

day. In our constitutional system, the executive power be-

longs to the President, and that power generally includes

the ability to supervise and remove the agents who wield

executive power in his stead. While we have previously up-

held limits on the President’s removal authority in certain

contexts, we decline to do so when it comes to principal of-

ficers who, acting alone, wield significant executive power.

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The Constitution requires that such officials remain depend-

ent on the President, who in turn is accountable to the people.

The judgment of the United States Court of Appeals for

the Ninth Circuit is vacated, and the case is remanded for

further proceedings consistent with this opinion.

It is so ordered.

Cite as: 591 U. S. ____ (2020) 1

Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–7

_________________

SEILA LAW LLC, PETITIONER v. CONSUMER

FINANCIAL PROTECTION BUREAU

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 29, 2020]

JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,

concurring in part and dissenting in part.

The Court’s decision today takes a restrained approach

on the merits by limiting Humphrey’s Executor v. United

States, 295 U. S. 602 (1935), rather than overruling it. At

the same time, the Court takes an aggressive approach on

severability by severing a provision when it is not necessary

to do so. I would do the opposite.

Because the Court takes a step in the right direction by

limiting Humphrey’s Executor to “multimember expert

agencies that do not wield substantial executive power,”

ante, at 16 (emphasis added), I join Parts I, II, and III of its

opinion. I respectfully dissent from the Court’s severability

analysis, however, because I do not believe that we should

address severability in this case.

I

The decision in Humphrey’s Executor poses a direct

threat to our constitutional structure and, as a result, the

liberty of the American people. The Court concludes that it

is not strictly necessary for us to overrule that decision. See

ante, at 2, 13–17. But with today’s decision, the Court has

repudiated almost every aspect of Humphrey’s Executor. In

a future case, I would repudiate what is left of this errone-

ous precedent.

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A

“The Constitution does not vest the Federal Government

with an undifferentiated ‘governmental power.’ ” Depart-

ment of Transportation v. Association of American Rail-

roads, 575 U. S. 43, 67 (2015) (THOMAS, J., concurring in

judgment). It sets out three branches and vests a different

form of power in each—legislative, executive, and judicial.

See Art. I, §1; Art. II, §1, cl. 1; Art. III, §1.

Article II of the Constitution vests “[t]he executive

Power” in the “President of the United States of America,”

§1, cl. 1, and directs that he shall “take Care that the Laws

be faithfully executed,” §3. Of course, the President cannot

fulfill his role of executing the laws without assistance. See

Myers v. United States, 272 U. S. 52, 117 (1926). He there-

fore must “select those who [are] to act for him under his

direction in the execution of the laws.” Ibid. While these

officers assist the President in carrying out his constitution-

ally assigned duties, “[t]he buck stops with the President.”

Free Enterprise Fund v. Public Company Accounting Over-

sight Bd., 561 U. S. 477, 493 (2010). “Since 1789, the Con-

stitution has been understood to empower the President to

keep [his] officers accountable—by removing them from of-

fice, if necessary.” Id., at 483. The Framers “insist[ed]”

upon “unity in the Federal Executive” to “ensure both vigor

and accountability” to the people. Printz v. United States,

521 U. S. 898, 922 (1997); see also ante, at 22.

Despite the defined structural limitations of the Consti-

tution and the clear vesting of executive power in the Pres-

ident, Congress has increasingly shifted executive power to

a de facto fourth branch of Government—independent

agencies. These agencies wield considerable executive

power without Presidential oversight. They are led by of-

ficers who are insulated from the President by removal re-

strictions, “reduc[ing] the Chief Magistrate to [the role of]

cajoler-in-chief.” Free Enterprise Fund, 561 U. S., at 502.

But “[t]he people do not vote for the Officers of the United

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Opinion of THOMAS, J.

States. They instead look to the President to guide the as-

sistants or deputies subject to his superintendence.” Id., at

497–498 (alterations, internal quotation marks and citation

omitted). Because independent agencies wield substantial

power with no accountability to either the President or the

people, they “pose a significant threat to individual liberty

and to the constitutional system of separation of powers

and checks and balances.” PHH Corp. v. CFPB, 881 F. 3d

75, 165 (CADC 2018) (Kavanaugh, J., dissenting).

Unfortunately, this Court “ha[s] not always been vigilant

about protecting the structure of our Constitution,” at times

endorsing a “more pragmatic, flexible approach” to our Gov-

ernment’s design. Perez v. Mortgage Bankers Assn., 575

U. S. 92, 115–116 (2015) (THOMAS, J., concurring in judg-

ment) (internal quotation marks omitted). Our tolerance of

independent agencies in Humphrey’s Executor is an unfor-

tunate example of the Court’s failure to apply the Constitu-

tion as written. That decision has paved the way for an

ever-expanding encroachment on the power of the Execu-

tive, contrary to our constitutional design.

B

1

The lead up to Humphrey’s Executor begins with this

Court’s decision in Myers, 272 U. S. 52. Myers involved a

federal statute that prohibited the President from removing

certain postmasters except “by and with the advice and con-

sent of the Senate.” Id., at 107 (internal quotation marks

omitted). The question presented was “whether under the

Constitution the President has the exclusive power of re-

moving executive officers of the United States whom he has

appointed by and with the advice and consent of the Sen-

ate.” Id., at 106. In a 70-page opinion by Chief Justice Taft,

the Court held that the Constitution did vest such power in

the President.

The Court anchored its analysis in evidence from the

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founding era. It acknowledged that the “subject [of re-

moval] was not discussed in the Constitutional Conven-

tion,” id., at 109–110, but it reviewed in detail the First

Congress’ vigorous debate about the removal of executive

officers in what is known as the Decision of 1789, id., at

111–135.1 In the course of analyzing the Decision of

1789, the Court explained that Article II vests “the execu-

tive power of the Government . . . in one person”—the

President—and that the executive power includes the au-

thority to “select those who [are] to act for him under his

direction in the execution of the laws.” Id., at 116–117. Re-

iterating the position of James Madison and other Members

of the First Congress, the Court noted that allowing limits

on the President’s removal authority would grant Congress

“the means of thwarting the Executive in the exercise of his

great powers and in the bearing of his great responsibility,

by fastening upon him, as subordinate executive officers,

men who by their inefficient service under him, by their

lack of loyalty to the service, or by their different views of

policy might make his taking care that the laws be faith-

fully executed most difficult or impossible.” Id., at 131. Af-

ter “devot[ing] much space to [the] discussion and decision

of the question of the Presidential power of removal in the

First Congress” as well as its understanding of the execu-

tive power, id., at 136, the Court concluded that “the power

to remove officers appointed by the President and the Sen-

ate vested in the President alone,” id., at 114. It repeatedly

described this removal power as “unrestricted.” Id., at 115,

134, 150, 172, 176.

The Court noted that the First Congress’ understanding

of the removal question was quickly “accepted as a final de-

cision of the question by all branches of the Government.”

——————

1 For a comprehensive review of the Decision of 1789, see Prakash, New

Light on the Decision of 1789, 91 Cornell L. Rev. 1021 (2006).

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Opinion of THOMAS, J.

Id., at 136. The decision was “affirmed by this Court in un-

mistakable terms.” Id., at 148, 152–153 (discussing Ex

parte Hennen, 13 Pet. 230, 259 (1839); Parsons v. United

States, 167 U. S. 324, 330 (1897)). Presidents had “uni-

form[ly]” adopted the First Congress’ view “whenever an is-

sue ha[d] clearly been raised.” Myers, 272 U. S., at 169.

And “Congress, in a number of acts, followed and enforced

the legislative decision of 1789 for seventy-four years.” Id.,

at 145. While disputes with President Andrew Johnson

over Reconstruction led Congress to “enact legislation to

curtail the then acknowledged powers of the President,” id.,

at 165, the Myers Court declined to give these politically

charged acts any weight, id., at 175–176.

After exhaustively analyzing the historical evidence, the

Court had “no hesitation in holding that [the First Con-

gress’] conclusion [was] correct.” Id., at 176. Accordingly,

the Court held that “the provision of the law [at issue], by

which the unrestricted power of removal of first class post-

masters is denied to the President, [was] in violation of the

Constitution, and invalid.” Ibid.

2

Nine years after Myers, the Court decided Humphrey’s

Executor. That case arose from the attempted removal of

Commissioner William Humphrey from the Federal Trade

Commission (FTC). In 1931, President Herbert Hoover ap-

pointed Humphrey to serve a 7-year term as one of the

FTC’s five Commissioners. By all accounts, Humphrey

proved to be a controversial figure. See Crane, Debunking

Humphrey’s Executor, 83 Geo. Wash. L. Rev. 1836, 1841

(2015); Winerman, The FTC at Ninety: History Through

Headlines, 72 Antitrust L. J. 871, 878–879 (2005); Yoo,

Calabresi, & Nee, The Unitary Executive During the Third

Half-Century, 1889–1945, 80 Notre Dame L. Rev. 1, 64

(2004). He reportedly “vowed not to approve any Commis-

sion action that did not have as its goal to help business

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help itself,” “threaten[ed] criminal prosecution against

other commissioners who publicly dissented,” and “called

his fellow commissioners men drunk with their own great-

ness” when they voted to initiate an investigation. Crane,

supra, at 1841 (internal quotation marks omitted).

Less than two years into Humphrey’s term, newly inau-

gurated President Franklin D. Roosevelt wrote Humphrey

a letter, asking for his resignation. The President ex-

plained that, in his view, “the aims and purposes of the Ad-

ministration with respect to the work of the Commission

[could] be carried out most effectively with personnel of

[his] own selection.” Humphrey’s Executor, 295 U. S., at 618

(internal quotation marks omitted). A little over a month

after his first letter, President Roosevelt wrote Humphrey

again to ask for his resignation. The letter stated: “You will,

I know, realize that I do not feel that your mind and my

mind go along together on either the policies or the admin-

istering of the [FTC], and, frankly, I think it is best for the

people of this country that I should have a full confidence.”

Id., at 619 (internal quotation marks omitted). Humphrey

declined to resign. In October 1933, President Roosevelt in-

formed Humphrey that he was removed from his position.

Humphrey did not comply, continuing “to insist that he was

still a member of the commission, entitled to perform its

duties and receive the compensation provided by law.” Ibid.

Four months later, Humphrey died. The executor of his

estate brought suit in the Court of Claims, seeking to re-

cover Humphrey’s salary from the date of his removal until

the date of his death. The Court of Claims certified two

questions to this Court: (1) whether §1 of the Federal Trade

Commission Act of 1914, ch. 311, 38 Stat. 717, prohibited

the President from removing FTC Commissioners except

for “inefficiency, neglect of duty, or malfeasance in office,”

and (2) if so, whether that restriction was constitutional.

295 U. S., at 619 (internal quotation marks omitted).

The Court answered both of these questions in favor of

Cite as: 591 U. S. ____ (2020) 7

Opinion of THOMAS, J.

Humphrey’s estate. It first held that the FTC Act “limit[ed]

the executive power of removal to the causes enumerated”

therein—inefficiency, neglect of duty, or malfeasance in of-

fice. Id., at 626. In the Court’s view, this construction of

the Act was clear from “the face of the statute” and “the

character of the commission,” id., at 624, which the Court

described as a “body of experts” that operates “independent

of executive authority . . . and free to exercise its judgment

without the leave or hindrance of any other official,” id., at

625–626.

Then, notwithstanding the text of Article II of the Consti-

tution and the decision in Myers, the Court held that the

Act’s restriction on the President’s authority to remove

Commissioners was constitutional. The Court acknowl-

edged that the “recently decided” Myers decision had “fully

review[ed] the general subject of the power of executive re-

moval” and “examine[d] at length the historical, legislative

and judicial data bearing upon the question.” Humphrey’s

Executor, 295 U. S., at 626. And it conceded that executive

officers are “subject to the exclusive and illimitable power

of removal by the Chief Executive.” Id., at 627; see also id.,

at 631 (recognizing “the President’s illimitable power of re-

moval” over executive officers).2 The Court, however,

claimed that “[t]he office of a postmaster is so essentially

unlike the office [of an FTC Commissioner] that the deci-

sion in the Myers case [could not] be accepted as control-

——————

2 The explicit and repeated recognition of the President’s “illimitable

power” in Humphrey’s Executor highlights the dissent’s error in claiming

that Humphrey’s Executor “abandoned [the] view” set out in Myers v.

United States, 272 U. S. 52 (1926). Post, at 17 (KAGAN, J., concurring in

judgment with respect to severability and dissenting in part) (hereinaf-

ter dissent). Humphrey’s Executor did not abandon Myers; it distin-

guished Myers based on the flawed premise that the FTC exercised

“quasi-legislative” and “quasi-judicial” power that is not part of “the ex-

ecutive power vested by the Constitution in the President.” Humphrey’s

Executor, 295 U. S., at 628; see also infra, at 9–11.

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ling.” Id., at 627. In the Court’s view, unlike the postmas-

ter in Myers, FTC commissioners did not qualify as “purely

executive officers.” 295 U. S., at 632.

The Court grounded its analysis in its assertion that the

FTC “occupies no place in the executive department and . . .

exercises no part of the executive power vested by the Con-

stitution in the President.” Id., at 628. Rather, in the

Court’s view, by “filling in and administering the details

embodied by [the FTC Act’s] general standard[,] the com-

mission act[ed] in part quasi-legislatively and in part quasi-

judicially.” Ibid. The Court stated that the FTC acted “as

a legislative agency” by “making investigations and reports

thereon for the information of Congress” and acted “as an

agency of the judiciary” when performing its role “as a mas-

ter in chancery under rules prescribed by the court.” Ibid.

“Such a body,” the Court explained, “cannot in any proper

sense be characterized as an arm or an eye of the executive.”

Ibid.

After distinguishing “purely executive officers” from offic-

ers exercising “quasi-legislative or quasi-judicial powers,”

ibid., the Court held that “[w]hether the power of the Pres-

ident to remove an officer shall prevail over the authority

of Congress to condition the power by . . . precluding a re-

moval except for cause, will depend upon the character of

the office,” id., at 631. “[P]urely executive officers” are sub-

ject to the President’s “unrestrictable power . . . to remove.”

Id., at 632. But with regard to “quasi-legislative” and

“quasi-judicial” officers, the Court concluded that “no re-

moval [could] be made . . . except for one or more of the

causes named.” Ibid.

3

Humphrey’s Executor laid the foundation for a fundamen-

tal departure from our constitutional structure with noth-

ing more than handwaving and obfuscating phrases such as

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Opinion of THOMAS, J.

“quasi-legislative” and “quasi-judicial.” Unlike the thor-

ough analysis in Myers, the Court’s thinly reasoned decision

is completely “devoid of textual or historical precedent for

the novel principle it set forth.” Morrison v. Olson, 487

U. S. 654, 726 (1988) (Scalia, J., dissenting). The excep-

tional weakness of the reasoning could be a product of the

circumstances under which the case was decided—in the

midst of a bitter standoff between the Court and President

Roosevelt3—or it could be just another example of this

Court departing from the strictures of the Constitution for

a “more pragmatic, flexible approach” to our government’s

design. Perez, 575 U. S., at 116 (opinion of THOMAS, J.) (in-

ternal quotation marks omitted). But whatever the moti-

vation, Humphrey’s Executor does not comport with the

Constitution.

Humphrey’s Executor relies on one key premise: the no-

tion that there is a category of “quasi-legislative” and

“quasi-judicial” power that is not exercised by Congress or

the Judiciary, but that is also not part of “the executive

power vested by the Constitution in the President.”

Humphrey’s Executor, supra, at 628. Working from that

premise, the Court distinguished the “illimitable” power of

removal recognized in Myers, Humphrey’s Executor, 295

——————

3 A number of historical sources indicate that President Roosevelt saw

Humphrey’s Executor v. United States, 295 U. S. 602 (1935), as an attack

on his administration. Given the Court’s recent decision in Myers, the

Roosevelt administration was reportedly “stunned” by the Court’s deci-

sion in Humphrey’s Executor, and the President was particularly an-

noyed that the decision “ma[de] it appear that he had been willfully vio-

lating the Constitution.” See W. Leuchtenberg, The Supreme Court

Reborn 78 (1995). Justice Jackson, who was serving in the Roosevelt

administration at the time, stated in an interview that “ ‘the decision that

made Roosevelt madder at the Court than any other decision was that

. . . little case of Humphrey’s Executor v. United States. The President

thought they went out of their way to spite him personally.’ ” E. Gerhart,

America’s Advocate: Robert H. Jackson 99 (1958) (quoting 1949 inter-

view with Justice Jackson).

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U. S., at 627–628, and upheld the FTC Act’s removal re-

striction, while simultaneously acknowledging that the

Constitution vests the President with the entirety of the ex-

ecutive power, id., at 628.

The problem is that the Court’s premise was entirely

wrong. The Constitution does not permit the creation of of-

ficers exercising “quasi-legislative” and “quasi-judicial pow-

ers” in “quasi-legislative” and “quasi-judicial agencies.” Id.,

at 628–629. No such powers or agencies exist. Congress

lacks the authority to delegate its legislative power, Whit-

man v. American Trucking Assns., Inc., 531 U. S. 457, 472

(2001), and it cannot authorize the use of judicial power by

officers acting outside of the bounds of Article III, Stern v.

Marshall, 564 U. S. 462, 484 (2011). Nor can Congress cre-

ate agencies that straddle multiple branches of Govern-

ment. The Constitution sets out three branches of Govern-

ment and provides each with a different form of power—

legislative, executive, and judicial. See Art. I, §1; Art. II,

§1, cl. 1; Art. III, §1. Free-floating agencies simply do not

comport with this constitutional structure. “[A]gencies

have been called quasi-legislative, quasi-executive or quasi-

judicial, as the occasion required, in order to validate their

functions within the separation-of-powers scheme of the

Constitution.” FTC v. Ruberoid Co., 343 U. S. 470, 487

(1952) (Jackson, J., dissenting). But “[t]he mere retreat to

the qualifying ‘quasi’ is implicit with confession that all rec-

ognized classifications have broken down, and ‘quasi’ is a

smooth cover which we draw over our confusion as we might

use a counterpane to conceal a disordered bed.” Id., at 487–

488.

That is exactly what happened in Humphrey’s Executor.

The Court upheld the FTC Act’s removal restriction by us-

ing the “quasi” label to support its claim that the FTC “ex-

ercise[d] no part of the executive power vested by the Con-

stitution in the President.” Humphrey’s Executor, supra, at

628. But “it is hard to dispute that the powers of the FTC

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at the time of Humphrey’s Executor would at the present

time be considered ‘executive,’ at least to some degree.”

Morrison, supra, at 690, n. 28; see ante, at 14, n. 2; see post,

at 18, n. 7 (KAGAN, J., concurring in judgment with respect

to severability and dissenting in part).

C

Today’s decision constitutes the latest in a series of cases

that have significantly undermined Humphrey’s Executor.

First, in Morrison, the Court repudiated the reasoning of

the decision. 487 U. S., at 689. Then, in Free Enterprise

Fund, we returned to the principles set out in the “land-

mark case of Myers.” 561 U. S., at 492. And today, the

Court rightfully limits Humphrey’s Executor to “multimem-

ber expert agencies that do not wield substantial executive

power.” Ante, at 16. After these decisions, the foundation

for Humphrey’s Executor is not just shaky. It is nonexist-

ent.

This Court’s repudiation of Humphrey’s Executor began

with its decision in Morrison. There, the Court upheld a

statute insulating an independent counsel from removal by

the Attorney General absent a showing of “good cause.”

Morrison, supra, at 659–660. In doing so, the Court set

aside the reasoning of Humphrey’s Executor. It recognized

that Humphrey’s Executor “rel[ied] on the terms ‘quasi-

legislative’ and ‘quasi-judicial’ to distinguish the officials

involved in Humphrey’s Executor . . . from those in Myers.”

487 U. S., at 689. But it then immediately stated that its

“present considered view is that the determination of

whether the Constitution allows Congress to impose a ‘good

cause’-type restriction on the President’s power to remove

an official cannot be made to turn on whether or not that

official is classified as ‘purely executive.’ ” Ibid. The Court

also rejected Humphrey’s Executor’s conclusion that the

FTC did not exercise executive power, stating that “the

powers of the FTC at the time of Humphrey’s Executor

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would at the present time be considered ‘executive.’ ” Mor-

rison, supra, at 690, n. 28. The lone dissenter, Justice

Scalia, disagreed with much of the Court’s analysis but

noted that the Court had rightfully “swept” Humphrey’s Ex-

ecutor “into the dustbin of repudiated constitutional princi-

ples.” 487 U. S., at 725. Thus, all nine Members of the

Court in Morrison rejected the core rationale of Humphrey’s

Executor.

The reasoning of the Court’s decision in Free Enterprise

Fund created further tension (if not outright conflict) with

Humphrey’s Executor. In Free Enterprise Fund, the Court

concluded that a dual layer of for-cause removal restrictions

for members of the Public Company Accounting Oversight

Board violated the Constitution. In its analysis, the Court

recognized that allowing officers to “execute the laws”

beyond the President’s control “is contrary to Article II’s

vesting of the executive power in the President.” 561 U. S.,

at 496 (emphasis added). The Court acknowledged that

“the executive power include[s] a power to oversee executive

officers through removal.” Id., at 492. And it explained

that, without the power of removal, the President cannot

“be held fully accountable” for the exercise of the executive

power, “ ‘greatly diminish[ing] the intended and necessary

responsibility of the chief magistrate himself.’ ” Id., at 514

(quoting The Federalist No. 70, p. 478 (J. Cooke ed. 1961)

(A. Hamilton)). Accountability, the Court repeatedly em-

phasized, plays a central role in our constitutional struc-

ture. See, e.g., Free Enterprise Fund, 561 U. S., at 498

(“[E]xecutive power without the Executive’s oversight . . .

subverts the President’s ability to ensure that the laws are

faithfully executed—as well as the public’s ability to pass

judgment on his efforts”); id., at 513 (“The Constitution that

makes the President accountable to the people for executing

the laws also gives him the power to do so”). Humphrey’s

Executor is at odds with every single one of these principles:

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Opinion of THOMAS, J.

It ignores Article II’s Vesting Clause, sidesteps the Presi-

dent’s removal power, and encourages the exercise of exec-

utive power by unaccountable officers. The reasoning of the

two decisions simply cannot be reconciled.

Finally, today’s decision builds upon Morrison and Free

Enterprise Fund, further eroding the foundation of Humph-

rey’s Executor. The Court correctly notes that “[t]he entire

‘executive Power’ belongs to the President alone.” Ante, at

11. The President therefore must have “power to remove—

and thus supervise—those who wield executive power on

his behalf.” Ante, at 2. As a result, the Court concludes

that Humphrey’s Executor must be limited to “multimem-

ber expert agencies that do not wield substantial executive

power.” Ante, at 16 (emphasis added). And, at the same

time, it recognizes (as the Court did in Morrison) that “[t]he

Court’s conclusion that the FTC did not exercise executive

power has not withstood the test of time.” Ante, at 14, n. 2.

In other words, Humphrey’s Executor does not even satisfy

its own exception.

In light of these decisions, it is not clear what is left of

Humphrey’s Executor’s rationale.4 But if any remnant of

that decision is still standing, it certainly is not enough to

justify the numerous, unaccountable independent agencies

——————

4 The dissent, while vigorously defending the holding of Humphrey's

Executor, can muster no defense for the reasoning of the decision. The

dissent does not defend the notion of “quasi” powers or “quasi” agencies,

recognizing that the power exercised by the FTC was executive power.

See post, at 18, n. 7. And, in 39 pages, it cannot explain how any aspect

of Humphrey’s Executor (other than its holding) survived Morrison v. Ol-

son, 487 U. S. 654 (1988), and Free Enterprise Fund v. Public Company

Accounting Oversight Bd., 561 U. S. 477 (2010). Instead, the dissent

simply claims that Humphrey’s Executor was “extended” and “clarified”

in Morrison, post, at 19, attempting to breathe validity into Humphrey’s

Executor through the Court’s Morrison decision. But the dissent’s read-

ing of Morrison as “extend[ing] Humphrey’s domain” is baffling. Post, at

19. Morrison expressly repudiated the substantive reasoning of Humph-

rey’s Executor. See supra, at 11–12.

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that currently exercise vast executive power outside the

bounds of our constitutional structure.

* * *

Continued reliance on Humphrey’s Executor to justify the

existence of independent agencies creates a serious, ongo-

ing threat to our Government’s design. Leaving these un-

constitutional agencies in place does not enhance this

Court’s legitimacy; it subverts political accountability and

threatens individual liberty. We have a “responsibility to

‘examin[e] without fear, and revis[e] without reluctance,’

any ‘hasty and crude decisions’ rather than leaving ‘the

character of [the] law impaired, and the beauty and har-

mony of the [American constitutional] system destroyed by

the perpetuity of error.’ ” Gamble v. United States, 587 U. S.

___, ___ (2019) (THOMAS, J., concurring) (slip op., at 7)

(quoting 1 J. Kent, Commentaries on American Law 444

(1826); some alterations in original). We simply cannot

compromise when it comes to our Government’s structure.

Today, the Court does enough to resolve this case, but in

the future, we should reconsider Humphrey’s Executor

in toto. And I hope that we will have the will to do so.

II

While I think that the Court correctly resolves the merits

of the constitutional question, I do not agree with its deci-

sion to sever the removal restriction in 12 U. S. C.

§5491(c)(3). See ante, at 30–36; post, at 37. To resolve this

case, I would simply deny the Consumer Financial Protec-

tion Bureau (CFPB) petition to enforce the civil investiga-

tive demand.

A

Article III of the Constitution vests “[t]he judicial Power

of the United States” in the “supreme Court” and the lower

federal courts established by Congress. §1. “[T]he judicial

power is, fundamentally, the power to render judgments in

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Opinion of THOMAS, J.

individual cases” or controversies that are properly before

the court. Murphy v. National Collegiate Athletic Assn., 584

U. S. ___, ___–___ (2018) (THOMAS, J., concurring) (slip op.,

at 2–3); see also Plaut v. Spendthrift Farm, Inc., 514 U. S.

211, 219 (1995) (“ ‘[A] “judicial Power” is one to render dis-

positive judgments’ ”); Baude, The Judgment Power, 96

Geo. L. J. 1807, 1815–1816 (2008). “[T]he power exercised

is that of ascertaining and declaring the law applicable to

the controversy.” Massachusetts v. Mellon, 262 U. S. 447,

488 (1923). In the context of a constitutional challenge, “[i]t

amounts to little more than the negative power to disregard

an unconstitutional enactment.” Ibid.; see also Mitchell,

The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936

(2018). Thus, if a party argues that a statute and the Con-

stitution conflict, “then courts must resolve that dispute

and, . . . follow the higher law of the Constitution.” Murphy,

584 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3).

Consistent with this understanding, “[e]arly American

courts did not have a severability doctrine.” Id., at ___ (slip

op., at 2) (citing Walsh, Partial Unconstitutionality, 85

N. Y. U. L. Rev. 738, 769 (2010)). If a statute was unconsti-

tutional, the court would just decline to enforce the statute

in the case before it. 584 U. S., at ___ (THOMAS, J., concur-

ring) (slip op., at 3). That was the end of the matter.

“[T]here was no ‘next step’ in which [a] cour[t]” severed por-

tions of a statute. Walsh, supra, at 777.

Our modern severability precedents create tension with

this historic practice. Instead of declining to enforce an un-

constitutional statute in an individual case, this Court has

stated that courts must “seve[r] and excis[e]” portions of a

statute to “remedy” the constitutional problem. United

States v. Booker, 543 U. S. 220, 245 (2005); Alaska Airlines,

Inc. v. Brock, 480 U. S. 678, 686 (1987). The Court’s rheto-

ric when discussing severance implies that a court’s deci-

sion to sever a provision “formally suspend[s] or erase[s it],

when [the provision] actually remains on the books as a

16 SEILA LAW LLC v. CONSUMER FINANCIAL

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Opinion of THOMAS, J.

law.” Mitchell, supra, at 1017. The Federal Judiciary does

not have the power to excise, erase, alter, or otherwise

strike down a statute. Murphy, supra, at ___ (THOMAS, J.,

concurring) (slip op., at 4); Mitchell, supra, at 936. And the

Court’s reference to severability as a “remedy” is inaccu-

rate. Traditional remedies—like injunctions, declarations,

or damages—“ ‘operate with respect to specific parties,’ not

‘on legal rules in the abstract.’ ” Murphy, supra, at ___

(THOMAS, J., concurring) (slip op., at 3) (quoting Harrison,

Severability, Remedies, and Constitutional Adjudication,

83 Geo. Wash. L. Rev. 56, 85 (2014)).

Because the power of judicial review does not allow courts

to revise statutes, Mitchell, supra, at 983, the Court’s sev-

erability doctrine must be rooted in statutory interpreta-

tion. But, even viewing severability as an interpretive

question, I remain skeptical of our doctrine. As I have pre-

viously explained, “the severability doctrine often requires

courts to weigh in on statutory provisions that no party has

standing to challenge, bringing courts dangerously close to

issuing advisory opinions.” Murphy, 584 U. S., at ___ (con-

curring opinion) (slip op., at 5). And the application of the

doctrine “does not follow basic principles of statutory inter-

pretation.” Id., at ___ (slip op., at 4). Instead of determin-

ing the meaning of a statute’s text, severability involves

“nebulous inquir[ies] into hypothetical congressional in-

tent.” Booker, supra, at 320, n. 7 (THOMAS, J., dissenting in

part).

B

Consistent with the traditional understanding of the ju-

dicial power, I would deny CFPB’s petition to enforce the

civil investigative demand that it issued to Seila. See

§5562(e)(1). Seila “challenge[d] the validity of both the civil

investigative demand and the ensuing enforcement action.”

Reply Brief for Petitioner 5. Seila has not countersued or

sought affirmative relief preventing the CFPB from acting

Cite as: 591 U. S. ____ (2020) 17

Opinion of THOMAS, J.

in the future; it simply asks us to “reverse the court of ap-

peals’ judgment.” Brief for Petitioner 35. I would do just

that. As the Court recognizes, the enforcement of a civil

investigative demand by an official with unconstitutional

removal protection injures Seila. See ante, at 9–10. Pre-

sented with an enforcement request from an unconstitu-

tionally insulated Director, I would simply deny the CFPB’s

petition for an order of enforcement. This approach would

resolve the dispute before us without addressing the issue

of severability.

The Court, however, does more. In the plurality’s view,5

because the CFPB raised a ratification argument before the

Court of Appeals, we can (and should) reach the question of

severability. See ante, at 30–31. But as explained more

fully below, resolving this question is wholly unnecessary.

Regardless of whether the CFPB’s ratification theory is

valid, the Court of Appeals on remand must reach the same

outcome: The CFPB’s civil investigative demand cannot be

enforced against Seila.

The ratification argument presented by the CFPB is quite

simple. Since its creation in 2010, the CFPB has had three

Directors—first Director Richard Cordray, then Acting Di-

rector Mick Mulvaney, and now Director Kathleen Kran-

inger. The CFPB’s first Director, Director Cordray, issued

a civil investigative demand to Seila and initiated the en-

forcement action. The CFPB has conceded that these ac-

tions were unconstitutional. But, in the Ninth Circuit, the

CFPB argued that the investigative demand was ratified by

Acting Director Mulvaney, who it claimed was not insulated

by the removal provision. Brief for Appellee in No. 17–

56324, pp. 13–19. In the CFPB’s view, the President could

——————

5 The dissent provides no analysis of severability, simply stating “if the

agency’s removal provision is unconstitutional, it should be severed.”

Post, at 37.

18 SEILA LAW LLC v. CONSUMER FINANCIAL

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remove Acting Director Mulvaney at will because the “re-

moval provision by its terms applies only to ‘the Director,’

not to an Acting Director,” and the Federal Vacancy Reform

Act “does not limit the President’s ability to designate a dif-

ferent person as Acting Director.” Id., at 14. Based on this

ratification theory, the CFPB asked the Ninth Circuit to af-

firm the District Court’s order granting the CFPB’s petition

to enforce its investigative demand.

The CFPB does not ask this Court to address ratification

on the merits, but it does rely on its unresolved ratification

theory to assert that the Court should reach severability.

In doing so, the CFPB relies on the same theory that it pre-

sented to the Ninth Circuit. Thus, the only live ratification

claim is the theory that Acting Director Mulvaney ratified

the civil investigative demand. See ante, at 30–31.6

The resolution of the CFPB’s Acting-Director ratification

theory, however, has no bearing on the outcome of the dis-

pute before us and therefore provides no basis for address-

ing severability. If the Acting Director did not ratify the

investigative demand, then there is obviously no need to ad-

dress severability. And even if he did, the Court still does

not need to address severability because the alleged ratifi-

cation does not cure the constitutional injury—enforcement

of an investigative demand by an unconstitutionally insu-

lated Director. Seila “challenge[d] the validity of both the

civil investigative demand and the ensuing enforcement ac-

tion.” Reply Brief for Petitioner 5 (emphasis added). Acting

Director Mulvaney may (or may not) have properly ratified

——————

6 The Court-appointed amicus suggests that the CFPB’s current Direc-

tor, Director Kraninger, ratified the enforcement proceeding by main-

taining the suit after she stated her belief that the removal provision is

unconstitutional. But the CFPB expressly disclaimed the notion that

Director Kraninger had the power to ratify the civil investigative de-

mand, stating that she “remains statutorily insulated from removal, re-

gardless whether she believes the law is invalid.” Reply Brief for Re-

spondent 7.

Cite as: 591 U. S. ____ (2020) 19

Opinion of THOMAS, J.

the issuance of the investigative demand and the initiation

of the enforcement proceedings. But he certainly could not

ratify the continuance of the enforcement action by his suc-

cessor, Director Kraninger. Id., at 7. Thus, even if the

CFPB’s ratification theory is valid, Seila still has an injury:

It has been (and continues to be) subjected to enforcement

of an investigative demand by Director Kraninger, who “re-

mains statutorily insulated from removal.” Reply Brief for

Respondent 7; see also Free Enterprise Fund, 561 U. S., at

513; ante, at 10. Thus, we should decline to enforce the civil

investigative demand against Seila. See supra, at 14–15.

Ultimately, I cannot see how the resolution of the sever-

ability question affects the dispute before us. And even if

severability could affect this case in some hypothetical

scenario, I would not reach out to resolve the issue given

my growing discomfort with our current severability

precedents.

C

Confident that it can address the question of severability,

the plurality moves on to conduct its analysis. It starts by

pointing to the severability clause in the Dodd-Frank Act.

See ante, at 33. That clause states: “If any provision of this

Act, an amendment made by this Act, or the application of

such provision or amendment to any person or circum-

stance is held to be unconstitutional, the remainder of this

Act, the amendments made by this Act, and the application

of the provisions of such to any person or circumstance shall

not be affected thereby.” §5302. The plurality states that

“[i]f the Director were removable at will by the President,

the constitutional violation would disappear.” Ante, at 32–

33. Then, relying on language in the severability clause, it

concludes that the removal provision, §5491(c)(3), should be

severed.

The plurality suggests that its analysis is a matter of

simply enforcing the “plain language” of the severability

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Opinion of THOMAS, J.

clause. See ante, at 33. But I am not sure it is that simple.

For one, the plurality does not actually analyze the statu-

tory language.7 Second, the analysis the plurality does pro-

vide looks nothing like traditional statutory interpretation.

Generally, when we interpret a statute, we do not hold that

the text sets out a “presum[ption]” that can be rebutted by

looking to atextual evidence of legislative intent. Ante, at

32. A text-based interpretation does not allow a free-rang-

ing inquiry into what “ ‘Congress, faced with the limitations

imposed by the Constitution, would have preferred’ ” had it

known of a constitutional issue. Ante, at 33 (quoting Free

Enterprise Fund, supra, at 509). Nor does it consider

whether Congress would have wanted to avoid “a major reg-

ulatory disruption.” Ante, at 35. Statutory interpretation

focuses on the text.

Even treating the question as a matter of pure statutory

interpretation and assuming that the plurality points to the

correct language, the text of the severability clause cannot,

in isolation, justify severance of the removal provision. In

——————

7 The severability clause refers to three alternative scenarios: (1) a

“provision of [the] Act . . . is held to be unconstitutional”; (2) “an amend-

ment made by [the] Act . . . is held unconstitutional”; and (3) “the appli-

cation of [a] provision or amendment [of the Act] to any person or circum-

stance is held to be unconstitutional.” 12 U. S. C. §5302. The plurality

assumes, with no analysis, that this case falls in the first scenario, call-

ing for a provision to be severed from the Dodd-Frank Act. See ante, at

33. But, as discussed below, there is no single “provision” of the Act that

has led to the constitutional injury in this case. See infra, at 20–21. It

is the attempted enforcement of a civil investigative demand under

§5562(e)(1) by an unconstitutionally insulated Director that causes the

constitutional injury in this case. There is at least a nonfrivolous argu-

ment that this case implicates the third scenario contemplated by the

severability clause—i.e., “the application of [a] provision” in a certain

“circumstance.” §5302. If that were so, the text of the severability clause

would not require any “provision” to be severed; the unconstitutional ap-

plication of §5562(e)(1) simply would not affect other provisions of the

Dodd-Frank Act. Such a reading would be consistent with the traditional

limits on the judicial power. See supra, at 14–15.

Cite as: 591 U. S. ____ (2020) 21

Opinion of THOMAS, J.

some instances, a constitutional injury arises as a result of

two or more statutory provisions operating together. See,

e.g., Free Enterprise Fund, supra, at 509 (stating that the

convergence of “a number of statutory provisions” produce

a constitutional violation); Booker, 543 U. S., at 316–317

(opinion of THOMAS, J.) (explaining that “the concerted ac-

tion of [18 U. S. C.] §3553(b)(1) and the operative Guide-

lines and the relevant Rule of Criminal Procedure resulted

in unconstitutional judicial factfinding”); Lea, Situation

Severability, 103 Va. L. Rev. 735, 778–780 (2017) (discuss-

ing statutory convergences). That is precisely the situation

we have in this case. As in Free Enterprise Fund, the pro-

vision requiring “good-cause removal is only one of [the]

statutory provisions that, working together, produce a con-

stitutional violation.” 561 U. S., at 509. The constitutional

violation results from, at a minimum, the combination of

the removal provision, 12 U. S. C. §5491(c)(3), and the pro-

vision allowing the CFPB to seek enforcement of a civil in-

vestigative demand, §5562(e)(1). When confronted with

two provisions that operate together to violate the Consti-

tution, the text of the severability clause provides no guid-

ance as to which provision should be severed. Thus, we

must choose, based on something other than the severabil-

ity clause, which provision to sever.

Without text to guide us, the severability inquiry moves

away from statutory interpretation and falls back on this

Court’s questionable precedents. See Murphy, 584 U. S.,

at ___–___ (THOMAS, J., concurring) (slip op., at 4–6). An

analysis of the Court’s decisions in Booker and Free Enter-

prise Fund illustrates the Court’s approach to determining

which provision to sever when confronting an injury caused

by an unconstitutional convergence of multiple statutory

provisions.

In Booker, a Rule of Criminal Procedure, a subset of pro-

visions in the Sentencing Guidelines, and a statutory pro-

vision operated together to require unconstitutional judicial

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Opinion of THOMAS, J.

factfinding. To determine which aspect of the sentencing

scheme to sever, the Court sought to divine “what Congress

would have intended in light of the Court’s constitutional

holding.” Booker, 543 U. S., at 246 (internal quotation

marks omitted). The Court “recognize[d] that sometimes

severability questions . . . can arise [in the context of] a leg-

islatively unforeseen constitutional problem.” Id., at 247.

But it nonetheless felt qualified to craft a remedy that

would “move sentencing in Congress’ preferred direction.”

Id., at 264. Surprisingly, that “move” did not involve en-

forcing the constitutional aspects of Congress’ sentencing

scheme. The Court stated that “we cannot assume that

Congress, if faced with the statute’s invalidity in key appli-

cations, would have preferred to apply the statute in as

many other instances as possible.” Id., at 248.8 Despite the

fact that there were a plethora of cases in which mandatory

Sentencing Guidelines would have posed no constitutional

problem, the Court decided to “sever and excise . . . the pro-

vision that requires sentencing courts to impose a sentence

within the applicable Guidelines range,” along with another

provision which was not even at issue in the case. Id., at

259. In essence, the Court crafted a new sentencing

scheme, transforming the Sentencing Guidelines into an

entirely discretionary system based on its estimation that

Congress would have wanted that result.

The Court in Free Enterprise Fund declined to explicitly

engage in Booker’s free-wheeling inquiry into Congress’

hypothetical preferences, but it did not replace that inquiry

with a clear standard. In that case, the Court held that a

——————

8 This statement in Booker is irreconcilable with the plurality’s asser-

tion here that “Congress would prefer that we use a scalpel rather than

a bulldozer in curing the constitutional defect.” Ante, at 35. Thus, it

appears that the plurality either sub silentio “junk[s] our settled severa-

bility doctrine,” ibid., or invokes, without explanation, different assump-

tions for different cases.

Cite as: 591 U. S. ____ (2020) 23

Opinion of THOMAS, J.

“number of statutory provisions . . . , working together, pro-

duce[d] a constitutional violation” similar to the violation at

issue here. Free Enterprise Fund, 561 U. S., at 509. The

Court decided to sever the Board’s removal restriction. It

explicitly recognized that there were multiple ways to ad-

dress the constitutional injury, stating that the Court could,

for example, “blue-pencil a sufficient number of the Board’s

responsibilities,” or “restrict the Board’s enforcement pow-

ers.” Ibid. But it described these alternative options as in-

volving “editorial freedom—far more extensive than [the]

holding today—[that] belongs to the Legislature, not the

Judiciary.” Id., at 510. The Court did not explain, however,

why the option that it chose was not also “editorial freedom”

that belongs to the Legislature or why the alternatives in-

volved “more extensive” “editorial freedom” than its pre-

ferred option. Ibid. The most that the Court provided was

a suggestion that fewer provisions would have to be severed

under its approach. Id., at 509–510.

Today’s plurality opinion provides no further guidance.

In fact, the plurality does not even recognize that it has

made a choice between the provisions that cause the consti-

tutional injury. It merely states that “[i]f the Director were

removable at will by the President, the constitutional viola-

tion would disappear.” Ante, at 32–33. Fair enough. But if

the Director lacked executive authority under the statute to

seek enforcement of a civil investigative demand,

§5562(e)(1), the constitutional violation in this case would

also disappear. The plurality thus chooses which of the pro-

visions to sever.

In short, when multiple provisions of law combine to

cause a constitutional injury, the Court’s current approach

allows the Court to decide which provision to sever. The

text of a severability clause does not guide that choice. Nor

does the practice of early American courts. See supra, at

14–15. The Court is thus left to choose based on nothing

more than speculation as to what the Legislature would

24 SEILA LAW LLC v. CONSUMER FINANCIAL

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Opinion of THOMAS, J.

have preferred. And the result of its choice can have a dra-

matic effect on the governing statutory scheme. See Booker,

supra, at 259 (converting the entirety of the Sentencing

Guidelines from a mandatory to a discretionary system).

This is not a simple matter of following the “plain language”

of a statute. Ante, at 33. It is incumbent on us to take a

close look at our precedents to make sure that we are not

exceeding the scope of the judicial power.

* * *

Given my concerns about our modern severability doc-

trine and the fact that severability makes no difference to

the dispute before us, I would resolve this case by simply

denying the CFPB’s petition to enforce the civil investiga-

tive demand.

Cite as: 591 U. S. ____ (2020) 1

K AGAN, J.,

Opinion of dissenting

KAGAN, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–7

_________________

SEILA LAW LLC, PETITIONER v. CONSUMER

FINANCIAL PROTECTION BUREAU

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 29, 2020]

JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE

BREYER, and JUSTICE SOTOMAYOR join, concurring in the

judgment with respect to severability and dissenting in

part.

Throughout the Nation’s history, this Court has left most

decisions about how to structure the Executive Branch to

Congress and the President, acting through legislation they

both agree to. In particular, the Court has commonly al-

lowed those two branches to create zones of administrative

independence by limiting the President’s power to remove

agency heads. The Federal Reserve Board. The Federal

Trade Commission (FTC). The National Labor Relations

Board. Statute after statute establishing such entities in-

structs the President that he may not discharge their direc-

tors except for cause—most often phrased as inefficiency,

neglect of duty, or malfeasance in office. Those statutes,

whose language the Court has repeatedly approved, provide

the model for the removal restriction before us today. If

precedent were any guide, that provision would have sur-

vived its encounter with this Court—and so would the in-

tended independence of the Consumer Financial Protection

Bureau (CFPB).

Our Constitution and history demand that result. The

text of the Constitution allows these common for-cause re-

moval limits. Nothing in it speaks of removal. And it

2 SEILA LAW LLC v. CONSUMER FINANCIAL

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K AGAN, J.,

Opinion of dissenting

KAGAN, J.

grants Congress authority to organize all the institutions of

American governance, provided only that those arrange-

ments allow the President to perform his own constitution-

ally assigned duties. Still more, the Framers’ choice to give

the political branches wide discretion over administrative

offices has played out through American history in ways

that have settled the constitutional meaning. From the

first, Congress debated and enacted measures to create

spheres of administration—especially of financial affairs—

detached from direct presidential control. As the years

passed, and governance became ever more complicated,

Congress continued to adopt and adapt such measures—

confident it had latitude to do so under a Constitution

meant to “endure for ages to come.” McCulloch v. Mary-

land, 4 Wheat. 316, 415 (1819) (approving the Second Bank

of the United States). Not every innovation in govern-

ance—not every experiment in administrative independ-

ence—has proved successful. And debates about the pru-

dence of limiting the President’s control over regulatory

agencies, including through his removal power, have never

abated.1 But the Constitution—both as originally drafted

and as practiced—mostly leaves disagreements about ad-

ministrative structure to Congress and the President, who

have the knowledge and experience needed to address

them. Within broad bounds, it keeps the courts—who do

not—out of the picture.

The Court today fails to respect its proper role. It recog-

nizes that this Court has approved limits on the President’s

removal power over heads of agencies much like the CFPB.

Agencies possessing similar powers, agencies charged with

——————

1 In the academic literature, compare, e.g., Kagan, Presidential Admin-

istration, 114 Harv. L. Rev. 2245, 2331–2346 (2001) (generally favoring

presidential control over agencies), with, e.g., Strauss, Overseer, or “The

Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev.

696, 704, 713–715 (2007) (generally favoring administrative independ-

ence).

Cite as: 591 U. S. ____ (2020) 3

K AGAN, J.,

Opinion of dissenting

KAGAN, J.

similar missions, agencies created for similar reasons. The

majority’s explanation is that the heads of those agencies

fall within an “exception”—one for multimember bodies and

another for inferior officers—to a “general rule” of unre-

stricted presidential removal power. Ante, at 13. And the

majority says the CFPB Director does not. That account,

though, is wrong in every respect. The majority’s general

rule does not exist. Its exceptions, likewise, are made up

for the occasion—gerrymandered so the CFPB falls outside

them. And the distinction doing most of the majority’s

work—between multimember bodies and single directors—

does not respond to the constitutional values at stake. If a

removal provision violates the separation of powers, it is be-

cause the measure so deprives the President of control over

an official as to impede his own constitutional functions.

But with or without a for-cause removal provision, the Pres-

ident has at least as much control over an individual as over

a commission—and possibly more. That means the consti-

tutional concern is, if anything, ameliorated when the

agency has a single head. Unwittingly, the majority shows

why courts should stay their hand in these matters. “Com-

pared to Congress and the President, the Judiciary pos-

sesses an inferior understanding of the realities of admin-

istration” and the way “political power[ ] operates.” Free

Enterprise Fund v. Public Company Accounting Oversight

Bd., 561 U. S. 477, 523 (2010) (BREYER, J., dissenting).

In second-guessing the political branches, the majority

second-guesses as well the wisdom of the Framers and the

judgment of history. It writes in rules to the Constitution

that the drafters knew well enough not to put there. It re-

pudiates the lessons of American experience, from the 18th

century to the present day. And it commits the Nation to a

static version of governance, incapable of responding to new

conditions and challenges. Congress and the President es-

tablished the CFPB to address financial practices that had

brought on a devastating recession, and could do so again.

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K AGAN, J.,

Opinion of dissenting

KAGAN, J.

Today’s decision wipes out a feature of that agency its cre-

ators thought fundamental to its mission—a measure of in-

dependence from political pressure. I respectfully dissent.

I

The text of the Constitution, the history of the country,

the precedents of this Court, and the need for sound and

adaptable governance—all stand against the majority’s

opinion. They point not to the majority’s “general rule” of

“unrestricted removal power” with two grudgingly applied

“exceptions.” Ante, at 13, 16. Rather, they bestow discre-

tion on the legislature to structure administrative institu-

tions as the times demand, so long as the President retains

the ability to carry out his constitutional duties. And most

relevant here, they give Congress wide leeway to limit the

President’s removal power in the interest of enhancing in-

dependence from politics in regulatory bodies like the

CFPB.

A

What does the Constitution say about the separation of

powers—and particularly about the President’s removal

authority? (Spoiler alert: about the latter, nothing at all.)

The majority offers the civics class version of separation

of powers—call it the Schoolhouse Rock definition of the

phrase. See Schoolhouse Rock! Three Ring Government

(Mar. 13, 1979), http://www.youtube.com/watch?v=

pKSGyiT-o3o (“Ring one, Executive. Two is Legislative,

that’s Congress. Ring three, Judiciary”). The Constitu-

tion’s first three articles, the majority recounts, “split the

atom of sovereignty” among Congress, the President, and

the courts. Ante, at 21 (internal quotation marks omitted).

And by that mechanism, the Framers provided a “simple”

fix “to governmental power and its perils.” Ibid.

There is nothing wrong with that as a beginning (except

the adjective “simple”). It is of course true that the Framers

Cite as: 591 U. S. ____ (2020) 5

K AGAN, J.,

Opinion of dissenting

KAGAN, J.

lodged three different kinds of power in three different en-

tities. And that they did so for a crucial purpose—because,

as James Madison wrote, “there can be no liberty where the

legislative and executive powers are united in the same per-

son[ ] or body” or where “the power of judging [is] not sepa-

rated from the legislative and executive powers.” The Fed-

eralist No. 47, p. 325 (J. Cooke ed. 1961) (quoting Baron de

Montesquieu).

The problem lies in treating the beginning as an ending

too—in failing to recognize that the separation of powers is,

by design, neither rigid nor complete. Blackstone, whose

work influenced the Framers on this subject as on others,

observed that “every branch” of government “supports and

is supported, regulates and is regulated, by the rest.” 1 W.

Blackstone, Commentaries on the Laws of England 151

(1765). So as James Madison stated, the creation of distinct

branches “did not mean that these departments ought to

have no partial agency in, or no controul over the acts of

each other.” The Federalist No. 47, at 325 (emphasis de-

leted).2 To the contrary, Madison explained, the drafters of

the Constitution—like those of then-existing state constitu-

tions—opted against keeping the branches of government

“absolutely separate and distinct.” Id., at 327. Or as Jus-

tice Story reiterated a half-century later: “[W]hen we speak

of a separation of the three great departments of govern-

ment,” it is “not meant to affirm, that they must be kept

wholly and entirely separate.” 2 J. Story, Commentaries on

the Constitution of the United States §524, p. 8 (1833). In-

stead, the branches have—as they must for the whole ar-

rangement to work—“common link[s] of connexion [and] de-

pendence.” Ibid.

——————

2 The principle of separation of powers, Madison continued, main-

tained only that “where the whole power of one department is exercised

by the same hands which possess the whole power of another depart-

ment, the fundamental principles of a free constitution[ ] are subverted.”

The Federalist No. 47, at 325–326.

6 SEILA LAW LLC v. CONSUMER FINANCIAL

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K AGAN, J.,

Opinion of dissenting

KAGAN, J.

One way the Constitution reflects that vision is by giving

Congress broad authority to establish and organize the Ex-

ecutive Branch. Article II presumes the existence of “Of-

ficer[s]” in “executive Departments.” §2, cl. 1. But it does

not, as you might think from reading the majority opinion,

give the President authority to decide what kinds of offic-

ers—in what departments, with what responsibilities—the

Executive Branch requires. See ante, at 11 (“The entire ‘ex-

ecutive Power’ belongs to the President alone”). Instead,

Article I’s Necessary and Proper Clause puts those deci-

sions in the legislature’s hands. Congress has the power

“[t]o make all Laws which shall be necessary and proper for

carrying into Execution” not just its own enumerated pow-

ers but also “all other Powers vested by this Constitution in

the Government of the United States, or in any Department

or Officer thereof.” §8, cl. 18. Similarly, the Appointments

Clause reflects Congress’s central role in structuring the

Executive Branch. Yes, the President can appoint principal

officers, but only as the legislature “shall . . . establish[] by

Law” (and of course subject to the Senate’s advice and con-

sent). Art. II, §2, cl. 2. And Congress has plenary power to

decide not only what inferior officers will exist but also who

(the President or a head of department) will appoint them.

So as Madison told the first Congress, the legislature gets

to “create[ ] the office, define[ ] the powers, [and] limit[ ] its

duration.” 1 Annals of Cong. 582 (1789). The President, as

to the construction of his own branch of government, can

only try to work his will through the legislative process.3

——————

3 Article II’s Opinions Clause also demonstrates the possibility of limits

on the President’s control over the Executive Branch. Under that Clause,

the President “may require the Opinion, in writing, of the principal Of-

ficer in each of the executive Departments, upon any Subject relating to

the Duties of their respective Offices.” §2, cl. 1. For those in the major-

ity’s camp, that Clause presents a puzzle: If the President must always

have the direct supervisory control they posit, including by threat of re-

moval, why would he ever need a constitutional warrant to demand

agency heads’ opinions? The Clause becomes at least redundant—

Cite as: 591 U. S. ____ (2020) 7

K AGAN, J.,

Opinion of dissenting

KAGAN, J.

The majority relies for its contrary vision on Article II’s

Vesting Clause, see ante, at 11–12, 25, but the provision

can’t carry all that weight. Or as Chief Justice Rehnquist

wrote of a similar claim in Morrison v. Olson, 487 U. S. 654

(1988), “extrapolat[ing]” an unrestricted removal power

from such “general constitutional language”—which says

only that “[t]he executive Power shall be vested in a Presi-

dent”—is “more than the text will bear.” Id., at 690, n. 29.

Dean John Manning has well explained why, even were it

not obvious from the Clause’s “open-ended language.” Sep-

aration of Powers as Ordinary Interpretation, 124 Harv.

L. Rev. 1939, 1971 (2011). The Necessary and Proper

Clause, he writes, makes it impossible to “establish a con-

stitutional violation simply by showing that Congress has

constrained the way ‘[t]he executive Power’ is imple-

mented”; that is exactly what the Clause gives Congress the

power to do. Id., at 1967. Only “a specific historical under-

standing” can bar Congress from enacting a given con-

straint. Id., at 2024. And nothing of that sort broadly pre-

vents Congress from limiting the President’s removal

power. I’ll turn soon to the Decision of 1789 and other evi-

dence of Post-Convention thought. See infra, at 9–13. For

now, note two points about practice before the Constitu-

tion’s drafting. First, in that era, Parliament often re-

stricted the King’s power to remove royal officers—and the

President, needless to say, wasn’t supposed to be a king.

See Birk, Interrogating the Historical Basis for a Unitary

Executive, 73 Stan. L. Rev. (forthcoming 2021). Second,

many States at the time allowed limits on gubernatorial re-

moval power even though their constitutions had similar

vesting clauses. See Shane, The Originalist Myth of the

Unitary Executive, 19 U. Pa. J. Const. L. 323, 334–344

(2016). Historical understandings thus belie the majority’s

——————

though really, inexplicable—under the majority’s idea of executive

power.

8 SEILA LAW LLC v. CONSUMER FINANCIAL

PROTECTION BUREAU

K AGAN, J.,

Opinion of dissenting

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